Wisconsin pot bill fiscal estimates show decriminalization would save state money

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Wisconsin state agencies report potential savings of cannabis decriminalization bill. (Photo Copyright Cannabadger.com)

In the 2015 Wisconsin legislative session, four bills regarding cannabis have so far been filed, covering industrial hemp, cannabidiol (CBD), adult use/medical and decriminalization. While the hemp and CBD bills have bipartisan sponsorship, the adult use/medical bill and the decriminalization bill only have Democratic sponsors. Rep. Mandela Barnes (D-Milwaukee) is the lead sponsor of the decriminalization proposal AB246/SB167. The senate lead sponsor is Sen. Chris Larson (D-Milwaukee).

Barnes discussed his bill in a recent article on Madison.com in The Capital Times: “We have to look at what people are going to prison for, and work to stop people going into the prison system who are non-violent, who are no harm to society. In many cases the only person they harm is themselves – petty drug offenses. (My) marijuana decriminalization bill – anybody who agrees or disagrees with legalization, the majority of people will say, “Yeah, nobody should be in jail for it.” It’s not worth the cost. They find out the price tag – we are spending way too much money to lock people up.”

Wisconsin law requires fiscal estimates for newly introduced legislation as many bills will affect the finances of Wisconsin state or local government or both if enacted into law. Fiscal estimates are prepared to help lawmakers make an informed decision on the potential fiscal implications of bills before them.

Cannabadger has reviewed the fiscal estimates filed for AB246/SB167, the cannabis decriminalization measure from Rep. Mandela Barnes. Three agencies have filed fiscal estimates on the proposal, District Attorneys (DA), State Public Defender (SPD) and the Dept. of Corrections (DOC). While each agency rates the fiscal impact as “Indeterminate”, their analyses do indicate the potential of significant savings. The three reports can be read below, along with the Legislative Reference Bureau analysis of the bill itself, which appears first.

While district attorneys had differing viewpoints, the DA report notes, “Some stated that their workload will decrease slightly because they would no longer review, charge, or litigate possession cases of less than 25 grams.” It concludes, “Prosecutors cited both potential savings and costs of the bill. Consequently, there was no consensus from which to make a reasonable estimate of the effect of this bill on DA offices. A fiscal estimate is therefore indeterminate.”

The State Public Defender’s Office offers a more rosy assessment in their analysis finding that, “Since the bill eliminates current penalties, it is possible the SPD will see a decrease in the number of cases in which it provides representation. In FY14, the SPD represented 4,257 felony cases and 2,980 misdemeanor cases related to all drug possession, not just marijuana. We are unable, however, to quantify the actual number of cases that might be reduced due to the provisions in the bill. The SPDs average cost to provide representation with a private bar attorney in a felony case was $551.02 and $255.54 In a misdemeanor case in fiscal year 2014.”

The Wisconsin Dept. of Corrections provides some interesting information about the costs of marijuana prohibition and reports that millions of dollars would likely be saved in not incarcerating and supervising people.

“This bill would result in a decrease in DOCs population based on the elimination of crimes.

Based on the assumptions laid out above, DOC estimates that the bill could result in an estimated cost savings of $3,728,200 per fiscal year.

(108 incarcerated individuals x $18,800/year= $2,030,400) + (2,432 offenders under minimum level community supervision = $1,697,800).

Community supervision savings are estimated by determining the number of DOC staff necessary to supervise 2,432 minimum level supervision offenders using the Case Classifications Staff Deployment.

(CCSD) formula. The CCSD formula indicates an estimated 29 FTE (20.00 FTE Probation & Parole Agents; 3.0 Correctional Field Supervisors; 1.0 Program Support Supervisor; 6.0 Office Operations Associates) are necessary to supervise 2,432 minimum level supervision offenders. ”

The $18,000 per year is in cases where contract beds are open in jails. The average Fiscal Year 2014 annual cost to incarcerate an inmate in a DOC institution is approximately $32,800.

So an analysis of the agency fiscal estimates indicates state agencies report that cost savings are possible with the passage and implementation of AB246/SB167.

AB246 was assigned to the Assembly Committee on Criminal Justice and Public Safety. Its Senate companion bill went to the Senate Committee on Judiciary and Public Safety. Unfortunately the chairs of each committee, State Rep. Joel Kleefisch (R-Oconomowoc) and State Sen. Van H. Wanggaard (R-Racine) have not yet moved to schedule a hearing. The vice chair of the Senate Committee on Judiciary and Public Safety is the notorious Sen. Leah Vukmir (R-Wauwatosa), perhaps the most openly hostile to cannabis law reform among all of the state’s 132 lawmakers.

As I noted in a recent letter to the editor in the Capital Times, this issue needs to be dealt with at the state level rather than a patchwork of local ordinances and state law with penalties ranging from a fine to a felony for the same amount of cannabis.

Analysis of AB246/SB167 by the Legislative Reference Bureau

Current law prohibits a person from possessing or attempting to possess; possessing with the intent to manufacture, distribute, or deliver; and manufacturing, distributing, or delivering marijuana. The penalties vary based on the amount of marijuana or plants involved or the number of previous controlled-substance convictions the person has. Current law also allows local governments to enact ordinances prohibiting the possession of marijuana.

This bill eliminates 1) the penalty for possession of marijuana if the amount of marijuana involved is no more than 25 grams; 2) the penalty for manufacturing or for possessing with the intent to manufacture, distribute, or deliver if the amount of marijuana involved is no more than 25 grams or the number of plants involved is no more than two; and 3) the penalty for distributing or delivering marijuana if the amount of marijuana involved is no more than 25 grams or the number of plants involved is no more than two. The bill retains the current-law penalty for distributing or delivering any amount of marijuana to a person who is no more than 17 years of age (minor) by a person who is at least three years older than the minor. This bill limits local governments to enacting ordinances prohibiting only the possession of more than 25 grams of marijuana.

The bill also prohibits establishing probable cause that a person is violating the prohibition against possessing more than 25 grams of marijuana by an odor of marijuana or by the possession of not more than 25 grams of marijuana. Current law requires that, when determining the weight of controlled substances, the weight includes the weight of the controlled substance together with any compound, mixture, or other substance mixed or combined with the controlled substance. Under this bill, when determining the amount of tetrahydrocannabinols, only the weight of the marijuana may be considered.

“We have to look at what people are going to prison for, and work to stop people going into the prison system who are non-violent, who are no harm to society. In many cases the only person they harm is themselves – petty drug offenses. (My) marijuana decriminalization bill – anybody who agrees or disagrees with legalization, the majority of people will say, “Yeah, nobody should be in jail for it.” It’s not worth the cost. They find out the price tag – we are spending way too much money to lock people up.” — Rep. Mandela Barnes (D-Milwaukee) is the lead sponsor of the decriminalization proposal AB246/SB167.

District Attorneys (DA) Assumptions Used in Arriving at Fiscal Estimate

This bill, if enacted, eliminates the penalty for possession, manufacturing with the intent to deliver, and distributing marijuana if the amount of marijuana involved is no more than 25 grams or the number of plants involved is no more than two. The bill does retain the current penalty for distributing any amount of marijuana to a person who is no more than 17 year of age by a person who is at least three years older. The bill limits local governments to enacting ordinances prohibiting only the possession of more than 25 grams of marijuana The bill also prohibits establishing probable cause that a person is violating the prohibition against possessing more than 25 grams of marijuana by an odor of marijuana or by the possession of not more than 25 grams of marijuana This bill also requires that the weight must be determined by weighing only marijuana, not other substances that may be mixed in.

District Attorneys (DAs) provided different viewpoints regarding the potential fiscal effect of this bill. Another prosecutor stated that the bill would not likely change their caseload because the crimes in rural counties generally are above the amount the bill would decriminalize. She believes that the same rationale could be applied to urban counties as well, because they generally have policy thresholds as to what they prosecute, and many have a threshold higher than the 25 gram amount. Some DAs expressed concern that marijuana is a gateway drug to harder drugs such as heroin, methamphetamine, cocaine, etc., which they deal with every day. Several DAs stated that the provisions eliminating odor as a basis for probable cause and requiring that weights be based upon only the weight of the marijuana, rather than including other substances that may be mixed in, will increase their workload. They believe that defense attorneys will challenge probable cause in any car search, person search, search warrant and charged case; and, they will have nothing to lose by claiming that at least some portion of probable cause was based upon an odor of marijuana. DAs are not certain how anyone will be able to determine the weight only of marijuana

Prosecutors cited both potential savings and costs of the bill. Consequently, there was no consensus from which to make a reasonable estimate of the effect of this bill on DA offices. A fiscal estimate is therefore indeterminate.

Long-Range Fiscal Implications

For the reasons described in the discussion above, a long-term fiscal estimate is indeterminate.

State Public Defenders Office (SPD) Assumptions Used in Arriving at Fiscal Estimate

The State Public Defender (SPD) is statutorily authorized and required to appoint attorneys to represent indigent defendants in criminal and certain commitment proceedings. The SPD plays a critical role in ensuring that the Wisconsin justice system complies with the right to counsel provided by both the state and federal constitutions. Any legislation has the potential to increase SPD costs if it creates a new criminal offense, expands the definition of an existing criminal offense, or increases the penalties for an existing offense.

This bill eliminates 1) the penalty for possession of marijuana if the amount of marijuana involved is no more than 25 grams; 2) the penalty for manufacturing or for possessing with the intent to manufacture, distribute, or deliver if the amount of marijuana involved is no more than 25 grams or the number of plants involved is no more than two; and 3) the penalty for distributing or delivering marijuana if the amount of marijuana involved is no more than 25 grams or the number of plants involved is no more than two. The bill retains the current-law penalty for distributing or delivering any amount of marijuana to a person who is no more than 17 years of age (minor) by a person who is at least three years older than the minor. This bill limits local governments to enacting ordinances prohibiting only the possession of more than 25 grams of marijuana The bill also prohibits establishing probable cause that a person is violating the prohibition against possessing more than 25 grams of marijuana by an odor of marijuana or by the possession of not more than 25 grams of marijuana Under this bill, when determining the amount of tetrahydrocannabinols, only the weight of the marijuana may be considered.

Since the bill eliminates current penalties, it is possible the SPD will see a decrease in the number of cases in which it provides representation. In FY14, the SPD represented 4,257 felony cases and 2,980 misdemeanor cases related to all drug possession, not just marijuana. We are unable, however, to quantify the actual number of cases that might be reduced due to the provisions in the bill. The SPDs average cost to provide representation with a private bar attorney in a felony case was $551.02 and $255.54 In a misdemeanor case in fiscal year 2014.

Long-Range Fiscal Implications

Wisconsin Dept. of Corrections (DOC) Assumptions Used in Arriving at Fiscal Estimate

Current law prohibits a person from possessing or attempting to possess; possessing with the intent to manufacture, distribute, or deliver; and manufacturing, distributing, or delivering marijuana The penalties vary based on the amount of marijuana or plants involved or the number of previous controlled-substance convictions the person has.

This bill eliminates 1) the penalty for possession of marijuana if the amount of marijuana involved is no more than 25 grams; 2) the penalty for manufacturing or for possessing with the intent to manufacture, distribute, or deliver if the amount of marijuana involved is no more than 25 grams or the number of plants involved is no more than two; and 3) the penalty for distributing or delivering marijuana if the amount of marijuana involved is no more than 25 grams or the number of plants involved is no more than two. The bill retains the current-law penalty for distributing or delivering any amount of marijuana to a person who is no more than 17 years of age (minor) by a person who is at least three years older than the minor. This bill limits local governments to enacting ordinances prohibiting only the possession of more than 25 grams of marijuana

Elimination of Certain Crimes:

This bill amends following statutes in the criminal code to establish 25 grams of marijuana as the minimum amount, previously no weight minimum existed in these specific statutes: Wis. Statute 961.41(3G)(E) Possession of THC and Wis. Statute 961.41(3G)(E) Possession of THC (2nd offense), Wis. Statute 961.41(IM)(H) and Wis. Statute 961.41(IM)(H)1.

In FY14, 36 people were admitted to prison whose most serious offense falls under those statutes and 1,596 offenders were placed on Extended Supervision (ES)/probation whose most serious offense falls under those statutes. For purposes of this fiscal estimate, an annualized population of these inmates/offenders was calculated (2,432 offenders and 108 inmates), we assume that this average daily population of 2,540 people would not be incarcerated or under community supervision. Therefore, this bill would result in a decrease in DOCs population based on the elimination of crimes.

Assumptions: 1)Individuals convicted under the statutes above do not have any other convictions for which they may be under supervision. 2)Offenders under community supervision for the above listed crimes are supervised as “Minimum” level offenders. 3)Average FY14 cost for an inmate in a contract bed is approximately $18,800. 4)Number of inmates incarcerated for the above listed crimes on an annual basis: 108 5)Number of individuals under community supervision for the above listed crimes on an annual basis: 2,432 6)Given the statutory language for the above listed crimes, the weight of the THC possessed by this population was less than 25 grams. 7)This bill would result in a decrease in DOCs population based on the elimination of crimes.

Based on the assumptions laid out above, DOC estimates that the bill could result in an estimated cost savings of $3,728,200 per fiscal year.

(108 incarcerated individuals x $18,800/year= $2,030,400) + (2,432 offenders under minimum level community supervision = $1,697,800)

Community supervision savings are estimated by determining the number of DOC staff necessary to supervise 2,432 minimum level supervision offenders using the Case Classifications Staff Deployment.

(CCSD) formula. The CCSD formula indicates an estimated 29 FTE (20.00 FTE Probation & Parole Agents; 3.0 Correctional Field Supervisors; 1.0 Program Support Supervisor; 6.0 Office Operations Associates) are necessary to supervise 2,432 minimum level supervision offenders.

The average FY14 annual cost for an inmate in a DOC institution is approximately $32,800. However, when there is excess capacity in DOC facilities, the incremental costs (i.e. food, health care and clothing) of housing a small number of inmates is approximately $5,700 based on FY14 costs. Should the Department use contract beds, the rate would be approximately $18,800 annually per person. A decrease in prison population may result in an institution closing housing units.

It should be noted that individuals convicted under these statutes may be under supervision or be incarcerated for other crimes as well, this may translate into an elimination of the estimated savings, in part or whole. Because of this, the fiscal impact is indeterminate.

Overall: If there is a large increase in the number of offenders placed on probation or extended supervision, additional community corrections funding and/or positions may be necessary to handle the population. The average FY14 annual cost to supervise one offender is approximately $2,800.

The average FY14 annual cost for an inmate in a DOC institution is approximately $32,800. However, when there is excess capacity in DOC facilities, the incremental costs (i.e. food, health care and clothing) of housing a small number of inmates is approximately $5,700 based on FY14 costs. Should the Department use contract beds, the rate would be approximately $18,800 annually per person.

The local fiscal impact of the bill cannot be predicted because the DOC cannot predict the number of people that will be sentenced and the sentencing practices of judges under the new law. Costs at the local level may increase if offenders are placed in jail rather than prison. The average FY14 annual cost to jail inmates is $18,800.

Long Range Fiscal Implications

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