In a move that signals a continued decline in penalties for illegal drug users, Dist. Atty. Christine Kenney announced Wednesday that she would begin offering diversions to people caught for the first time using cocaine, methamphetamine and other so-called "hard" drugs.
The change means some offenders will be able to avoid a felony conviction and have charges dropped if they stay out of trouble for a period of time, pay fees, do community service, undergo drug treatment and meet other special conditions.
One reason for the change was Senate Bill 123, the state law passed last year that requires drug-treatment programs instead of prison for many drug offenders.
"I think that's a good policy," defense attorney Martin Miller said in response to Kenney's announcement. "I think the trend out there in the public's eye and maybe the Legislature, too, is toward recognizing that people that have a drug problem are not necessarily criminals."
Kenney's office previously has offered diversions on many misdemeanors, including first-time marijuana possession. But possession of other drugs such as cocaine, heroin or methamphetamine is a felony on first offense, and although other counties, including Johnson County, have allowed diversions for those crimes for years, Douglas County hasn't.
"This is just something that I've resisted because it was a felony, and I wasn't convinced that there were appropriate treatment providers out there to address some of the problems with these substance abusers," Kenney said.
That changed with the passage of the new drug-treatment law, which established court-certified treatment programs at private agencies statewide. Judges now must make those programs a condition of probation for people convicted and sentenced for drug possession.
Under Kenney's plan, people who receive diversion must undergo the same treatment given to people who are convicted. If they offend again, the judge will know they've had access to state-approved treatment, Kenney said.
People caught with more than one gram of drugs or more than 28 grams of marijuana -- approximately one ounce -- won't be eligible for diversion, nor will people with a criminal background, unless there are special circumstances. They'll have to pay about $150 in court costs and a diversion fee of about $150, not to mention possible drug-lab costs, which Kenney said can run into the hundreds of dollars.
"I don't think by allowing diversion we're saying this is not a significant crime, but there's been a debate for a number of years" about how to handle drug cases, Kenney said. "When I first started prosecuting, the attitude was, 'If we send these users to prison, they'll stop using, and it will work its way up the chain.' We've find out that's not the case. There are bigger issues than the threat of going to prison."
Kenney also announced Wednesday that her office would begin granting diversions for many traffic offenses, such as speeding tickets, driving while suspended and driving without proof of insurance.