In the late 1990s, the voters in Arizona, through the proposition process, enacted a law that prohibited incarceration for most cases of simple drug possession, i.e., drug possession for personal use. The law prohibited both prison and jail time. Although the legislature and courts have tinkered with the law a bit during the intervening years, the basic rule holds true to this day – if you’re charged with a drug offense for simple possession (for personal use), you are not going to be sentenced to jail. The law, set out in A.R.S. § 13-901.01, is commonly referred to as “Prop 200” or “Proposition 200.” All drug offenders who fall under the protection of the law will receive probation rather than incarceration. Despite the basic “no jail” rule, there are some exceptions to Prop 200 protection – circumstances where jail or prison remain possible, or even likely or mandatory. Here are the most common exceptions: 1. The basic principle behind the protections of Proposition 200 is the belief that drug abuse is, at its root, a health problem rather than a criminal justice problem. The goal of the law is not simply that offenders be free from incarceration, but that the offenders are provided treatment and counseling for drug abuse. Thus, drug offenders who seek the protections of Prop 200 are required to participate in meaningful drug treatment and counseling while they are on probation. Participation is the key. The drug offender may mess up, but so long as the offender offers meaningful participation, he is free from the threat of incarceration. If the offender fails to participate, incarceration may then be ordered by the court as a term of probation. 2. If the charge is a second offense, or what is colloquially referred to as a “second strike” under Prop 200, then the courts have many more sanctions available for use, including incarceration. Probation, rather than prison, must still be ordered for the offender. However, the court can impose a variety of sanctions as part of the probation. 3. If the charge is a third offense, or “third strike,” Proposition 200 does not apply and the offender may be sentenced to prison. 4. If the offender has a “violent crime” conviction in his or her past, then Proposition 200 does not apply and the offender may be sentenced to prison. “Violent crime” is defined as any crime that results in death or physical injury, or any crime involving the use of a deadly weapon or dangerous instrument. 5. Drug offenses involving methamphetamine are excluded from the protections of Proposition 200.
