Existing law classifies controlled substances into 5 schedules and places the greatest restrictions and penalties on the use of those substances placed in Schedule I. The drug fentanyl is classified in Schedule II. Existing law prohibits a person from possessing for sale or purchasing for purposes of sale, specified controlled substances, including fentanyl, and provides for imprisonment in a county jail for 2, 3, or 4 years for a violation of this provision. Existing law also imposes an additional term upon a person who is convicted of a violation of, or of a conspiracy to violate, specified provisions of law with respect to a substance containing heroin, cocaine base, and cocaine, if the substance exceeds a specified weight. Existing law imposes a greater additional term under these provisions depending on the weight of the substance.

This bill would make the provisions imposing an additional term, as described above, applicable with respect to a substance containing fentanyl. By imposing additional incarceration costs on local agencies, the bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Date of Hearing: August 3, 2016

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez, Chair

SBPCA Bill Id:SB 1323

Author:(Bates) – As Introduced Ver:February 19, 2016

Urgency: No State Mandated Local Program: Yes Reimbursable: No

SUMMARY:

This bill includes the synthetic opioid fentanyl in an enhancement statute under which a defendant convicted of any of a list of specified drug commerce crimes involving heroin, cocaine or cocaine base receives an additional prison term of three to 25 years based on the weight of the substance containing the drug involved in the case.

FISCAL EFFECT:

Potentially significant costs (GF) for increased state prison commitments for longer terms in state prison than otherwise would have been imposed in the absence of the proposed sentence enhancement. According to the California Department of Corrections (CDCR), the contracted out-of-state annual bed rate is $29,000. However, given the range of sentence enhancements from three to 25 years, the cumulative impact would be difficult to estimate.

COMMENTS:

1. Background. Under current law, the sale of fentanyl (a synthetic and short-acting opioid analgesic that is 50-100 times more potent than morphine and approved for managing acute or chronic pain associated with advanced cancer) is punishable by three, four, or five years. If transportation over county lines is involved, the offense is punishable by 3, 6, or 9 years. Also, current law provides penalties for commerce in cocaine, cocaine base, heroin and specified opiates, including fentanyl, and provides the following additional sentence weight-based enhancements of the illegal substance:
2. 1 kilogram = 3 years
3. 4 kilograms = 5 years
4. 10 kilograms = 10 years
5. 20 kilograms = 15 years
6. 40 kilograms = 20 years
7. 80 kilograms = 25 years
8. Purpose. According to the author, “SB 1323 includes fentanyl with heroin and cocaine in the category of drugs that are subject to enhancements by weight. By doing so, this bill targets those distributing, trafficking, and selling mass quantities of fentanyl. The bill does not affect those who use fentanyl – whether legally or illegally. It only targets the high-level, illegal traffickers who are causing the proliferation of fentanyl, leading to hundreds of deaths throughout the state.”

It should be noted that the existing enhancement based on the weight of the drug involved in specified drug commerce crimes includes any substance containing cocaine, cocaine base or heroin. Illicit drug manufacturers, distributors and sellers often mix fentanyl or an analog with heroin, because it is much more potent than heroin and relatively easy and cheap to manufacture. A defendant convicted of commerce involving a mixture of heroin and fentanyl would be subject to the weight enhancement under current law. This bill would only be necessary where the sole drug manufactured, distributed or sold in the underlying crime was fentanyl.

1. Support: According to the California Police Chiefs Association, "SB 1323 provides an appropriate public policy solution to addressing the danger posed by this illicit drug [(fentanyl0]. By focusing on those who seek to illegally sell the substance, law enforcement can reduce the drug's prevalence in our communities... this bill targets those distributing and selling mass quantities of fentanyl.”
2. Opposition: The American Civil Liberties Union, states that, “a bill that would create sentence enhancements ranging from 3 to 25 years for, among other things, possessing for sale a substance containing fentanyl is not necessary and may be counterproductive. Under current law, a person who possesses fentanyl for sale or purchases it for sale can be punished by up to four years in jail and a person can be punished by up to five years in jail for transporting, selling, or giving away fentanyl."

Analysis Prepared by: Pedro Reyes / APPR. / (916) 319-2081

Date of Hearing: June 21, 2016

Counsel: Gabriel Caswell

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

SBPCA Bill Id:SB 1323

Author:(Bates) – As Introduced Ver:February 19, 2016

SUMMARY: Includes the synthetic opioid fentanyl in an enhancement statute under which a defendant convicted of any of a list of specified drug commerce crimes involving heroin, cocaine or cocaine base receives an additional prison term of three to 25 years based on the weight of the substance containing the drug involved in the case.

EXISTING LAW:

1. Provides the following penalties for commerce in cocaine, cocaine base, heroin and specified opiates including fentanyl. Sale includes any transfer or distribution:
   
   1. Possession for sale is punishable by two, three, or four years. (Health and Saf. Code § 11351.)
      
   2. Sale of fentanyl is punishable by three, four, or five years. If transportation over county lines is involved the offense is punishable by 3, 6, or 9 years. (Health and Saf. Code § 11352.)
      
2. Provides the following additional sentencing enhancements based on the weight of the heroin, opiate or cocaine possessed for sale or sold. (Health and Saf. Code §§ 11370.4, subd. (a).)
   
   1. 1 kilogram = 3 years
      
   2. 4 kilograms = 5 years
      
   3. 10 kilograms = 10 years
      
   4. 20 kilograms = 15 years
      
   5. 40 kilograms = 20 years
      
   6. 80 kilograms = 25 years

FISCAL EFFECT:

COMMENTS:

1. Author's Statement: According to the author, "SB 1323 recognizes that the danger posed by fentanyl is greater than that of other drugs with penalty enhancements based on weight. Fentanyl is not only fifty-times stronger than heroin, but also threatens the lives and safety of those who do not even use it. This bill would therefore take the commonsense step of adding the same enhancements for fentanyl, thereby protecting unknowing users, first responders, and children.

"Just this year, we have witnessed the severe impact fentanyl is having on our communities. In March, the Sacramento area saw 52 fentanyl overdoses and 14 deaths in the period of just a week. Data from Orange and Los Angeles counties reveals a more than 40% increase, year-over-year, in fentanyl-related deaths. In early June, we learned that beloved musical icon Prince was the latest of thousands of Americans whose lives have been taken by fentanyl. Without swift action, law enforcement officials expect these trends to continue.

"As demonstrated during the last fentanyl outbreak, a decade ago, the best way to address this serious problem is to suffocate the illegal fentanyl trade at its source. This bill represents a critical step toward preventing fentanyl from causing even more fatalities and damage to our state. By going after the sophisticated criminal organizations that produce, transport, and distribute fentanyl, we give law enforcement the tools it needs to end this deadly scourge.

"SB 1323 amends Section 11370.4 of the Health and Safety Code to include fentanyl with heroin and cocaine in the category of drugs that are subject to enhancements by weight. By doing so, this bill targets those distributing, trafficking, and selling mass quantities of Fentanyl. The bill does not affect those who use fentanyl – whether legally or illegally. It only targets the high-level, illegal traffickers who are causing the proliferation of fentanyl, leading to hundreds of deaths throughout the state."

1. Jail Overcrowding: According to a recent report by the Public Policy Institute of California titled Capacity Challenges in California's Jails, California's county jails are facing increasing adult daily populations (ADP). Many counties are facing capacity constraints on their population. Prior to realignment, 17 counties were operating under court orders limiting the number of inmates in their jails. In all, 13 counties including some of the biggest (Los Angeles, Orange, San Diego, and Sacramento) had average daily populations that were larger than the number of beds their jails were rated for.
2. Fentanyl and Fentanyl Analogs: Fentanyl was synthesized in the 1960s and has been used medically since 1968. The Centers for Disease Control and Prevention (CDC) website^[1] provides this description of fentanyl:

Fentanyl, a synthetic and short-acting opioid analgesic, is 50-100 times more potent than morphine and approved for managing acute or chronic pain associated with advanced cancer. …[M]ost cases of fentanyl-related morbidity and mortality have been linked to illicitly manufactured fentanyl and fentanyl analogs, collectively referred to as non-pharmaceutical fentanyl (NPF). NPF is sold via illicit drug markets for its heroin-like effect and often mixed with heroin and/or cocaine as a combination product—with or without the user’s knowledge—to increase its euphoric effects. While NPF-related overdoses can be reversed with naloxone, a higher dose or multiple number of doses per overdose event may be required …due to the high potency of NPF. (Internal quotation marks and footnotes omitted.)

Mixing fentanyl or a fentanyl analog with heroin is not a consistent phenomenon and may change over time and from place to place. A 2015 study^[2] by researchers at the Centers for Disease Control and Prevention investigated acetyl fentanyl overdose deaths in Rhode Island over one year’s time - March 2012 through May 2013, and separately analyzed data from March through May of 2013. 64% of the decedents in the full year data had consumed only acetyl fentanyl, not a mixture of that drug and heroin, although numerous persons had used a mixture of the two drugs. In the14 acetyl fentanyl overdoses from March through May of 2013, the drug was not likely mixed with heroin.

1. DEA Analysis of Current Fentanyl Trends: The Drug Enforcement Administration (DEA) publishes an annual illicit drug “threat assessment.” The assessment reviews trends and issues concerning major drugs of abuse.

The 2015 ^[3]Threat Assessment stated as to fentanyl:

Fentanyl will remain a threat while the current clandestine production continues; however, it is unlikely to assume a significant portion of the opioid market. Fentanyl’s short-lasting high, coupled with its high mortality rate, renders it unappealing to many opioid users who prefer the longer-lasting high that heroin offers and who wish to avoid the increased danger from fentanyl. Fentanyl will continue to remain available in limited quantities; however, it will most commonly be consumed unknowingly, mixed with heroin or other drugs. Fentanyl will remain a significant threat to law enforcement personnel and first responders as minute amounts… can be lethal, and visually, can be mistaken for cocaine or white powder heroin. (Italics added.)

The DEA has reported^[4] to the United States Senate that most illicit fentanyl is produced in Mexico “with its analogs and precursors obtained from distributors in China. Fentanyl is smuggled across the [Southwest U.S. border] in kilogram quantities…”

1. Existing Law Covers Many Fentanyl Commerce Crimes as Fentanyl is Often Mixed with Heroin, a Drug Included in the Current Enhancement: The existing enhancement based on the weight of the drug involved in specified drug commerce crimes includes any substance containing cocaine, cocaine base or heroin. Illicit drug manufacturers, distributors and sellers often mix fentanyl or an analog with heroin, because it is much more potent than heroin and relatively easy and cheap to manufacture. A defendant convicted of commerce involving a mixture of heroin and fentanyl would be subject to the weight enhancement under current law. This bill would only be necessary where the sole drug manufactured, distributed or sold in the underlying crime was fentanyl. However, prosecutors will likely still need to use the analog statute to implement this bill, as most cases will involve fentanyl analogs, not fentanyl per se.
2. Most Fentanyl Cases Involve a Fentanyl Analog, typically Acetyl Fentanyl: As noted above, most cases that are reported as involving fentanyl actually involve one of numerous fentanyl analogs or derivatives. Fentanyl and alfafentanyl are Schedule II drugs in California. As reflected in federal law, but not specifically stated in California law, Schedule I drugs are deemed to have no medical utility and a high potential for abuse. Schedule II drugs have legitimate medical uses, but also a high potential for abuse. Where a defendant’s crime involved acetyl fentanyl or another related drug that is not listed in the controlled substance schedules, it appears the prosecutor must prove that the drug is an analog of fentanyl. The analog statute applies to Schedule I and Schedule II drugs. (Health & Saf. Code §§ 11054 and 11055.)

Health and Safety Code Section 11401 defines an analog as follows:

• 1. A substance the chemical structure of which is substantially similar to the chemical structure of a controlled substance classified in Section 11054 or 11055.
  2. A substance which has, is represented as having, or is intended to have a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to, or greater than, the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance classified in Section 11054 or 11055.

1. Increasing Sentences for Narcotic Fentanyl: Criminal justice experts and commentators have noted that, with regard to sentencing, “a key question for policy development regards whether enhanced sanctions or an enhanced possibility of being apprehended provide any additional deterrent benefits.

Research to date generally indicates that increases in the certainty of punishment, as opposed to the severity of punishment, are more likely to produce deterrent benefits.^[5]

A comprehensive report published in 2014, entitled The Growth of Incarceration in the United States, discusses the effects on crime reduction through incapacitation and deterrence, and describes general deterrence compared to specific deterrence:

A large body of research has studied the effects of incarceration and other criminal penalties on crime. Much of this research is guided by the hypothesis that incarceration reduces crime through incapacitation and deterrence. Incapacitation refers to the crimes averted by the physical isolation of convicted offenders during the period of their incarceration. Theories of deterrence distinguish between general and specific behavioral responses. General deterrence refers to the crime prevention effects of the threat of punishment, while specific deterrence concerns the aftermath of the failure of general deterrence—that is, the effect on reoffending that might result from the experience of actually being punished. Most of this research studies the relationship between criminal sanctions and crimes other than drug offenses. A related literature focuses specifically on enforcement of drug laws and the relationship between those criminal sanctions and the outcomes of drug use and drug prices.^[6]

In regard to deterrence, the authors note that in “the classical theory of deterrence, crime is averted when the expected costs of punishment exceed the benefits of offending. Much of the empirical research on the deterrent power of criminal penalties has studied sentence enhancements and other shifts in penal policy. . . .

Deterrence theory is underpinned by a rationalistic view of crime. In this view, an individual considering commission of a crime weighs the benefits of offending against the costs of punishment. Much offending, however, departs from the strict decision calculus of the rationalistic model. Robinson and Darley (2004) review the limits of deterrence through harsh punishment. They report that offenders must have some knowledge of criminal penalties to be deterred from committing a crime, but in practice often do not.”^[7]

The authors of the 2014 report discussed above conclude that incapacitation of certain dangerous offenders can have “large crime prevention benefits,” but that incremental, lengthy prison sentences are ineffective for crime deterrence:

Whatever the estimated average effect of the incarceration rate on the crime rate, the available studies on imprisonment and crime have limited utility for policy. The incarceration rate is the outcome of policies affecting who goes to prison and for how long and of policies affecting parole revocation. Not all policies can be expected to be equally effective in preventing crime. Thus, it is inaccurate to speak of the crime prevention effect of incarceration in the singular. Policies that effectively target the incarceration of highly dangerous and frequent offenders can have large crime prevention benefits, whereas other policies will have a small prevention effect or, even worse, increase crime in the long run if they have the effect of increasing postrelease criminality.

Evidence is limited on the crime prevention effects of most of the policies that contributed to the post-1973 increase in incarceration rates. Nevertheless, the evidence base demonstrates that lengthy prison sentences are ineffective as a crime control measure. Specifically, the incremental deterrent effect of increases in lengthy prison sentences is modest at best. Also, because recidivism rates decline markedly with age and prisoners necessarily age as they serve their prison sentence, lengthy prison sentences are an inefficient approach to preventing crime by incapacitation unless they are specifically targeted at very high-rate or extremely dangerous offenders. For these reasons, statutes mandating lengthy prison sentences cannot be justified on the basis of their effectiveness in preventing crime.^[8]

With regard to the drug trade, the authors state:

For several categories of offenders, an incapacitation strategy of crime prevention can misfire because most or all of those sent to prison are rapidly replaced in the criminal networks in which they participate. Street-level drug trafficking is the paradigm case. Drug dealing is part of a complex illegal market with low barriers to entry. Net earnings are low, and probabilities of eventual arrest and imprisonment are high . . . Drug policy research has nonetheless shown consistently that arrested dealers are quickly replaced by new recruits . . . . At the corner of Ninth and Concordia in Milwaukee in the mid-1990s, for example, 94 drug arrests were made within a 3-month period. “These arrests, [the police officer] pointed out, were easy to prosecute to conviction. But . . . the drug market continued to thrive at the intersection” . . . .

Despite the risks of drug dealing and the low average profits, many young disadvantaged people with little social capital and limited life chances sell drugs on street corners because it appears to present opportunities not otherwise available. However, [they] … overestimate the benefits of that activity and underestimate the risks. This perception is compounded by peer influences, social pressures, and deviant role models provided by successful dealers who live affluent lives and… avoid arrest. Similar analyses apply to members of deviant youth groups and gangs: as members … are arrested and removed from circulation, others take their place. Arrests and imprisonments of easily replaceable offenders create illicit “opportunities” for others.^[9]

1. Argument in Support: According to the California Police Chiefs Association, "SB 1323 would include fentanyl with heroin and cocaine in the category of drugs that are subject to enhancements by weight. By doing so, this bill targets those distributing and selling mass quantities of fentanyl.

"SB 1323 provides an appropriate public policy solution to addressing the danger posed by this illicit drug. By focusing on those who seek to illegally sell the substance, law enforcement can reduce the drug's prevalence in our communities. For those reasons, Cal Chiefs is in support of this measure."

1. Argument in Opposition: According to the American Civil Liberties Union, "The American Civil Liberties Union of California regrets to inform you of our opposition to SB 1323, a bill that would create sentence enhancements ranging from 3 to 25 years for, among other things, possessing for sale a substance containing fentanyl. In light of existing penalties, existing jail overcrowding, and the growing consensus that the war on drugs has been a massive failure, we do not believe this bill is necessary and may instead be counterproductive.

"Under existing law, a person who possesses fentanyl for sale or purchases it for sale can be punished by up to four years in jail. (Health and Safety Code §11351.) Likewise, a person can be punished by up to five years in jail for transporting, selling, or giving away fentanyl. (Health and Safety Code §11352.) Adding excessive new sentence enhancements for these crimes will not make our communities safer.^[10] Rather, studies have found that certainty of punishment – that someone will be punished for a particular crime – has a greater deterrent effect than the severity of the punishment itself.^[11] Current law already provides significant penalties for the underlying behavior at issue in this bill.

"Rather than acting as a deterrent, the new enhancements will only serve to overcrowd our jails. By recent accounts, California jails already face problems with overcrowding, with 38 facilities across 20 counties under court-ordered population caps.^[12] Unnecessarily crowding our jails and prisons is not fiscally prudent, nor safe for inmates, jail staff, or the public.

"Moreover, there is growing national consensus that the war on drugs, characterized by draconian sentences like the ones at issue in SB 1323, has been a harmful, expensive failure. Just recently, even a former Richard Nixon advisor, one of the original architects of the war, admitted as much, confessing, 'Did we know we were lying about the drugs? Of course we did.'^[13]"

REGISTERED SUPPORT / OPPOSITION:

Support

Association for Los Angeles Deputy Sheriffs

Association of Deputy District Attorneys

California College and University Police Chiefs Association

California Narcotic Officers Association

California Police Chiefs Association

California State Sheriffs' Association

City of Laguna Niguel

Crime Victims United of California

Los Angeles District Attorney's Office

Los Angeles Police Protective League

Orange County Board of Supervisors

Orange County District Attorney

Orange County Sheriff

Riverside Sheriffs Association

San Bernardino County Sheriff

San Diego Sheriff

Todd Spitzer, Orange County Supervisor

Opposition

American Civil Liberties Union

California Attorneys for Criminal Justice

California Public Defenders Association

Legal Services for Prisoners with Children

Analysis Prepared by: Gabriel Caswell / PUB. S. / (916) 319-3744

1. http://emergency.cdc.gov/han/han00384.asp ↑

2. http://link.springer.com/article/10.1007%2Fs13181-015-0477-9 ↑

3. http://www.dea.gov/docs/2015%20NDTA%20Report.pdf – p. 43 ↑

4. http://www.dea.gov/pr/speeches-testimony/2015t/111715t.pdf ↑

5. Valerie Wright, Ph.D., Deterrence in Criminal Justice Evaluating Certainty vs. Severity of Punishment (November 2010), The Sentencing Project (http://www.sentencingproject.org/doc/Deterrence%20Briefing%20.pdf.) ↑

6. The Growth of Incarceration in the United States (2014), Jeremy Travis, Bruce Western and Steve Redburn, Editors, Committee on Causes and Consequences of High Rates of Incarceration, The National Research Council, p. 131 (citations omitted) (http://johnjay.jjay.cuny.edu/nrc/NAS_report_on_incarceration.pdf,) ↑

7. Id. at 132-133. ↑

8. Id. at 155-156 (emphasis added). ↑

9. Id., at 146 (citations omitted). ↑

10. Valerie Wright, Deterrence in Criminal Justice: Evaluating Certainty vs. Severity of Punishment (Sentencing Project 2010) available at http://www.sentencingproject.org/doc/deterrence%20briefing%20.pdf. ↑

11. Id. ↑

12. Magnus Lofstrum and Brandon Martin, Just the Facts: California’s County Jails, (Public Policy Institute of California 2015). ↑

13. Dan Baum, Legalize it All: How to Win the War on Drugs, Harpers Magazine (April 2016). ↑

 THIRD READING  

Bill No: SB 1323

Author:

:

Vote:

SENATE PUBLIC SAFETY COMMITTEE: 7-0, 4/5/16

AYES: Hancock, Anderson, Glazer, Leno, Liu, Monning, Stone

SENATE APPROPRIATIONS COMMITTEE: 7-0, 5/27/16

AYES: Lara, Bates, Beall, Hill, McGuire, Mendoza, Nielsen

SUBJECT:

SOURCE: Orange County Sheriff’s Department

DIGEST: This bill includes the synthetic opioid fentanyl in an enhancement statute under which a defendant convicted of any of a list of specified drug commerce crimes involving heroin, cocaine or cocaine base receives an additional prison term of from three years to 25 years based on the weight of the substance containing the drug involved in the case.

ANALYSIS:

Existing law:

1) Provides the following penalties for commerce in cocaine, cocaine base, heroin and specified opiates – including fentanyl. The section references are to the Health and Safety Code. Sale includes any transfer or distribution: § 11351 possession for sale – felony 1170 (h) term of two, three or four years; § 11351.5 possession of cocaine base for sale – felony 1170 (h) term of two, three, or four years; § 11352 sale - three, six or nine years.

2) Provides the following enhancements based on the weight of the heroin, opiate or cocaine possessed for sale or sold. (Health and Saf. Code §§ 11370.4, subd. (a).)

This bill adds fentanyl to the list of drugs that include heroin, cocaine or cocaine base for purposes of an enhancement for drug commerce based on the weight of the substance involved in the case that contained one of the listed drugs.

Background

According to the author:

SB 1323 would add fentanyl to a category of dangerous drugs, such as heroin, that are subject to penalty enhancements based on the weight an individual has in his possession for sale or distribution. Fentanyl is a synthetic opioid. In its pharmaceutical form, fentanyl is used to treat people with severe chronic pain when other pain medicines no longer work and as an anesthetic in surgery. When abused, both pharmaceutical and clandestine fentanyl affect the brain and nervous system by producing a euphoric high 80 to 100 times stronger than morphine and 40 times stronger than heroin. Overdosing on fentanyl causes blood pressure to plummet, diminishes breathing and induces deep sleep coma, which can lead to death. Between 2013 and 2014, California was one of 25 states affected by fentanyl overdose incidents and deaths. Fentanyl produced clandestinely has no legal medical use and can be smoked, snorted, ingested or injected.

Fentanyl can be substituted for heroin in opioid dependent individuals. However, fentanyl is a very dangerous because it is much more potent and results in frequent overdoses that can lead to respiratory depression and death. Some analogs are even more potent. Particularly troubling is the fact that users are often unaware that they are using fentanyl and, therefore, ignorant to the severe risks they face. Fentanyl is inexpensive to produce, making it a go-to heroin substitute for the drug cartels. Finally, fentanyl has proven to be a significant threat to law enforcement personnel and first responders as minute amounts –equivalent to a few grains of salt—can be lethal, and visually, can be mistaken for cocaine or white powder heroin.

Nationwide there has been a significant increase in fentanyl-related overdose fatalities. While most increases in fentanyl overdose fatalities have been in eastern states, law enforcement officials in California fear that the trend is coming to California. For example, Orange County has found an increase in driving under the drug’s influence cases and in those found in possession of the drug.

SB 1323 amends Section 11370.4 of the Health and Safety Code to include fentanyl with heroin and cocaine in the category of drugs that are subject to enhancements by weight. By doing so, this bill targets those distributing, trafficking, and selling mass quantities of Fentanyl. SB 1323 recognizes that the danger posed by fentanyl use is greater than that of other opioids, but also threatens the lives and safety of those who do not even use it. This bill would therefore take the commonsense step of adding the same enhancements for fentanyl, thereby protecting unknowing users, first responders, and children.

Fentanyl was synthesized in the 1960s and has been used medically since 1968. The Centers for Disease Control and Prevention (CDC) Web site provides this description of fentanyl:

Fentanyl, a synthetic and short-acting opioid analgesic, is 50-100 times more potent than morphine and approved for managing acute or chronic pain associated with advanced cancer. …[M]ost cases of fentanyl-related morbidity and mortality have been linked to illicitly manufactured fentanyl and fentanyl analogs, collectively referred to as non-pharmaceutical fentanyl (NPF). NPF is sold via illicit drug markets for its heroin-like effect and often mixed with heroin and/or cocaine as a combination product—with or without the user’s knowledge—to increase its euphoric effects. While NPF-related overdoses can be reversed with naloxone, a higher dose or multiple number of doses per overdose event may be required …due to the high potency of NPF. (Internal quotation marks and footnotes omitted.) (http://emergency.cdc.gov/han/han00384.asp)

The Drug Enforcement Administration (DEA) publishes an annual illicit drug “threat assessment.” The assessment reviews trends and issues concerning major drugs of abuse.

The 2105 Threat Assessment stated as to fentanyl:

Fentanyl will remain a threat while the current clandestine production continues; however, it is unlikely to assume a significant portion of the opioid market. Fentanyl’s short-lasting high, coupled with its high mortality rate, renders it unappealing to many opioid users who prefer the longer-lasting high that heroin offers and who wish to avoid the increased danger from fentanyl. Fentanyl will continue to remain available in limited quantities; however, it will most commonly be consumed unknowingly, mixed with heroin or other drugs. Fentanyl will remain a significant threat to law enforcement personnel and first responders as minute amounts… can be lethal, and visually, can be mistaken for cocaine or white powder heroin. (Italics added.)

The DEA has reported to the United States Senate that most illicit fentanyl is produced in Mexico “with its analogs and precursors obtained from distributors in China. Fentanyl is smuggled across the [Southwest U.S. border] in kilogram quantities…”

The existing enhancement based on the weight of the drug involved in specified drug commerce crimes includes any substance containing cocaine, cocaine base or heroin. Illicit drug manufacturers, distributors and sellers often mix fentanyl or an analog with heroin, because it is much more potent than heroin and relatively easy and cheap to manufacture. A defendant convicted of commerce involving a mixture of heroin and fentanyl would be subject to the weight enhancement under current law.

Pharmaceutical fentanyl is much more potent than morphine or heroin. However, the analgesic, euphoric and overdose properties of pharmaceutical fentanyl are relatively certain and well known, or can be determined. However, each batch of non-pharmaceutical fentanyl can have very different chemical composition and effects. Acetyl fentanyl is actually less potent than pharmaceutical fentanyl, but that is not true for all fentanyl analogs. There is no consistent ratio of analgesic (pain control), euphoric and overdose properties among fentanyl analogs. That is, the overdose potential of a drug does not necessarily rise or fall with the euphoric and analgesic properties among the analogs. The European Monitoring Centre for Drugs and Drug Addiction (EMCDDA) has written that other analogs have been estimated as being thousands of times more potent than morphine. The EMCDDA cautioned: “It is difficult to be certain that this increased analgesic potency means that the euphoric effects are similarly increased, and more importantly, whether the overdose potential of these analogues is also increased by the same margin.” (http://www.emcdda.europa.eu/publications/drug-profiles/fentanyl)

A person who has become accustomed to an analog with comparatively low overdose potential who thereafter uses a drug with a high potential for overdose, is at especially great risk for overdose. For example, the fentanyl analog 3-methylfentanyl, known by the street name of China White, caused many overdose deaths in California in 1978. So-called China White is several hundred times more potent than morphine. Acetyl fentanyl is four to five times more potent than heroin, but substantially less potent than pharmaceutical fentanyl.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

According to the Senate Appropriations Committee:

• State prisons: Potential future increase in state costs (General Fund) for longer terms in state prison than otherwise would have been imposed in the absence of the proposed sentence enhancement. Given the range of sentence enhancements from three to 25 years, the cumulative impact of even one or two defendants over a span of several years could increase future state costs in the hundreds of thousands of dollars.
• County jails: Potential future increase in local costs (Local Funds or General Fund*) for extended jail terms than otherwise would have been imposed in the absence of the proposed sentence enhancement. Costs would be dependent on the number of defendants and the length of the sentence enhancement imposed.
• Court workload: Potential minor increase in workload (General Fund) for separate jury trials for cases charged with the proposed enhancement.

* Proposition 30 (2012) provides that legislation enacted after September 30, 2012, that has an overall effect of increasing the costs already borne by a local agency, as specified, apply to local agencies only to the extent the State provides annual funding for the cost increase. Although legislation creating a new crime or revising the definition of an existing crime is exempt from Proposition 30 state funding requirements, legislation that changes the penalty for an existing crime is not similarly specifically exempt. Drug commerce offenses involving fentanyl are crimes under existing law. To the extent the greater penalties imposed for drug commerce crimes involving specified amounts of substances containing fentanyl are determined to change the penalties for existing crimes, any increase in costs to local agencies attributable to the provisions of this bill could potentially require annual funding from the State.

SUPPORT: (Verified 5/27/16)

Orange County Sheriff’s Department (source)

Association for Los Angeles Deputy Sheriffs

Association of Deputy District Attorneys

California Association of Code Enforcement Officers

California College and University Police Chiefs Association

California Narcotics Officers Association

California Police Chiefs Association

California State Sheriffs’ Association

Crime Victims United of California

Los Angeles County Professional Peace Officers Association

Los Angeles Police Protective League

Orange County Supervisor, Third District

Orange County District Attorney

Riverside Sheriffs Association

San Bernardino County Sheriff-Coroner

San Diego County Sheriff’s Department

OPPOSITION: (Verified 5/27/16)

American Civil Liberties Union

California Attorneys for Criminal Justice

California Public Defenders Association

Legal Services for Prisoners with Children

Prepared by: Jerome McGuire / PUB. S. /

5/28/16 16:46:06

**** END ****

SENATE COMMITTEE ON

Senator Ricardo Lara, Chair

2015 - 2016 Regular Session

SB 1323 (Bates) - Controlled substances: fentanyl

This bill meets the criteria for referral to the Suspense File.

Bill Summary:

SB 1323 would add fentanyl to the list of controlled substances subject to a sentence enhancement of three years to 25 years for specified drug commerce convictions, based on the weight of the substance containing the fentanyl, as specified.

Fiscal Impact:

• State prisons: Potential future increase in state costs (General Fund) for longer terms in state prison than otherwise would have been imposed in the absence of the proposed sentence enhancement. Given the range of sentence enhancements from three to 25 years, the cumulative impact of even one or two defendants over a span of several years could increase future state costs in the hundreds of thousands of dollars.
• County jails: Potential future increase in local costs (Local Funds or General Fund*) for extended jail terms than otherwise would have been imposed in the absence of the proposed sentence enhancement. Costs would be dependent on the number of defendants and the length of the sentence enhancement imposed.
• Court workload: Potential minor increase in workload (General Fund) for separate jury trials for cases charged with the proposed enhancement.

*Proposition 30 (2012) provides that legislation enacted after September 30, 2012, that has an overall effect of increasing the costs already borne by a local agency, as specified, apply to local agencies only to the extent the State provides annual funding for the cost increase. Although legislation creating a new crime or revising the definition of an existing crime is exempt from Proposition 30 state funding requirements, legislation that changes the penalty for an existing crime is not similarly specifically exempt. Drug commerce offenses involving fentanyl are crimes under existing law. To the extent the greater penalties imposed for drug commerce crimes involving specified amounts of substances containing fentanyl are determined to change the penalties for existing crimes, any increase in costs to local agencies attributable to the provisions of this legislation could potentially require annual funding from the State.

Background:

Existing law provides for specified penalties for commerce in cocaine, cocaine base, heroin, and specified opiates, including fentanyl, as follows:

• A person who possesses for sale or purchases for purposes of sale any of the controlled substances specified above shall be punished by imprisonment pursuant to Penal Code (PC) § 1170(h) for two, three, or four years. (Health and Safety Code (HSC) § 11351, 11351.5.)
• A person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport, unless upon the written prescription of specified persons licensed to practice in this state, any of the controlled substances specified above shall be punished by imprisonment pursuant to PC § 1170(h) for three, four, or five years, or a term of three, six, or nine years if transporting the controlled substance between non-contiguous counties. (HSC § 11352.)

Under existing law, a person convicted of a violation of, or of a conspiracy to violate any of the above referenced drug commerce crimes with respect to a substance containing heroin, cocaine, or cocaine base is subject to an additional term of incarceration, as follows (HSC § 11370.4(a).):

Proposed Law:

This bill would provide that a person convicted of a violation of, or of a conspiracy to violate specified drug commerce crimes with respect to a substance containing fentanyl is subject to a sentence enhancement of three years to 25 years based on the weight of the substance containing the fentanyl.

Staff Comments:

By adding fentanyl to the list of controlled substances subject to a sentence enhancement based on the weight of the substance containing fentanyl, this bill could potentially result in longer sentences being imposed for drug commerce crimes involving fentanyl, both to state prison and county jail pursuant to the provisions of PC § 1170(h)(3), which provides that sentences imposed on defendants with the following criminal history must be served in state prison: 1) a defendant has a prior or current felony conviction for a serious or violent felony; 2) a defendant is required to register as a sex offender; or 3) a defendant is convicted of a crime and as part of the sentence an enhancement pursuant to PC § 186.11 is imposed.

While the court may strike the additional punishment for the enhancements, it is possible that the court may instead impose a longer base term, thereby still resulting in greater costs than otherwise would have been incurred under existing law.

The fiscal impact of this bill cannot be known with certainty, as the actual impact will be dependent on numerous factors including but not limited to judicial and prosecutorial discretion, the criminal history of the defendant, and the factors unique to each case. Additionally, to the extent historical commitments under the enhancement statute already largely reflect defendants convicted of commerce crimes involving fentanyl, which is commonly mixed with heroin, the impact of this bill would be limited to only those cases in which fentanyl was the sole controlled substance manufactured, distributed or sold in the underlying offense.

Data from the Department of Justice indicates over 4,000 convictions in each of the past three years for the drug commerce crimes applicable in this bill. However, data was unavailable at the time of this analysis indicating how many defendants additionally had a sentence enhancement imposed on the specified convictions. Data from the CDCR reflects an average of 70 commitments released from state prison over the past three years under the sentence enhancement statute specified in this bill. To the extent this bill impacts even one or two defendants over a span of several years, given the range of sentence enhancements from three to 25 years, the cumulative impact of even a small number of cases would increase future state costs in the hundreds of thousands of dollars based on the estimated contract bed cost per case of $29,000 per inmate.

-- END --

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Loni Hancock, Chair

2015 - 2016 Regular

Bill No: SB 1323 Hearing Date: April 5, 2016

Subject: Controlled Substances: Fentanyl

HISTORY

Source: Orange County Sheriff’s Department

Prior Legislation: None

Support: California Police Chiefs Association; California State Sheriffs’ Association; Crime Victims United of California; Orange County Board of Supervisor, Third District; Orange County District Attorney; San Bernardino County Sheriff-Coroner; San Diego County Sheriff’s Department

Opposition: American Civil Liberties Union; California Attorneys for Criminal Justice; California Public Defenders Association; Legal Services for Prisoners with Children

PURPOSE

The purpose of this bill is to include the synthetic opioid fentanyl in an enhancement statute under which a defendant convicted of any of a list of specified drug commerce crimes involving heroin, cocaine or cocaine base receives an addition prison term of from three years to 25 years based on the weight of the substance containing the drug involved in the case.

Existing law provides the following penalties for commerce in cocaine, cocaine base, heroin and specified opiates – including fentanyl. The section references are to the Health and Safety Code. Sale includes any transfer or distribution:

• § 11351 possession for sale – felony 1170 (h) term of 2, 3 or 4 years
• § 11351.5 possession of cocaine base for sale - felony 1170 (h) term 2, 3,or 4 years
• § 11352 sale – 3, 6 or 9 years

Existing law provides the following enhancements based on the weight of the heroin, opiate or cocaine possessed for sale or sold. (Health and Saf. Code §§ 11370.4, subd. (a).)

This bill adds fentanyl to the list of drugs that include heroin, cocaine or cocaine base for purposes of an enhancement for drug commerce based on the weight of the substance involved in the case that contained one of the listed drugs.

RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

For the past several years this Committee has scrutinized legislation referred to its jurisdiction for any potential impact on prison overcrowding. Mindful of the United States Supreme Court ruling and federal court orders relating to the state’s ability to provide a constitutional level of health care to its inmate population and the related issue of prison overcrowding, this Committee has applied its “ROCA” policy as a content-neutral, provisional measure necessary to ensure that the Legislature does not erode progress in reducing prison overcrowding.

On February 10, 2014, the federal court ordered California to reduce its in-state adult institution population to 137.5% of design capacity by February 28, 2016, as follows:

• 143% of design bed capacity by June 30, 2014;
• 141.5% of design bed capacity by February 28, 2015; and,
• 137.5% of design bed capacity by February 28, 2016.

In December of 2015 the administration reported that as “of December 9, 2015, 112,510 inmates were housed in the State’s 34 adult institutions, which amounts to 136.0% of design bed capacity, and 5,264 inmates were housed in out-of-state facilities. The current population is 1,212 inmates below the final court-ordered population benchmark of 137.5% of design bed capacity, and has been under that benchmark since February 2015.” (Defendants’ December 2015 Status Report in Response to February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman v. Brown, Plata v. Brown (fn. omitted).) One year ago, 115,826 inmates were housed in the State’s 34 adult institutions, which amounted to 140.0% of design bed capacity, and 8,864 inmates were housed in out-of-state facilities. (Defendants’ December 2014 Status Report in Response to February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman v. Brown, Plata v. Brown (fn. omitted).)

While significant gains have been made in reducing the prison population, the state must stabilize these advances and demonstrate to the federal court that California has in place the “durable solution” to prison overcrowding “consistently demanded” by the court. (Opinion Re: Order Granting in Part and Denying in Part Defendants’ Request For Extension of December 31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court, Coleman v. Brown, Plata v. Brown (2-10-14). The Committee’s consideration of bills that may impact the prison population therefore will be informed by the following questions:

• Whether a proposal erodes a measure which has contributed to reducing the prison population;
• Whether a proposal addresses a major area of public safety or criminal activity for which there is no other reasonable, appropriate remedy;
• Whether a proposal addresses a crime which is directly dangerous to the physical safety of others for which there is no other reasonably appropriate sanction;
• Whether a proposal corrects a constitutional problem or legislative drafting error; and
• Whether a proposal proposes penalties which are proportionate, and cannot be achieved through any other reasonably appropriate remedy.

COMMENTS

1. Need for This Bill

According to the author:

SB 1323 would add fentanyl to a category of dangerous drugs, such as heroin, that are subject to penalty enhancements based on the weight an individual has in his possession for sale or distribution. Fentanyl is a synthetic opioid. In its pharmaceutical form, fentanyl is used to treat people with severe chronic pain when other pain medicines no longer work and as an anesthetic in surgery. When abused, both pharmaceutical and clandestine fentanyl affect the brain and nervous system by producing a euphoric high 80 to 100 times stronger than morphine and 40 times stronger than heroin. Overdosing on fentanyl causes blood pressure to plummet, diminishes breathing and induces deep sleep coma, which can lead to death. Between 2013 and 2014, California was one of 25 states affected by fentanyl overdose incidents and deaths. Fentanyl produced clandestinely has no legal medical use and can be smoked, snorted, ingested or injected.

Fentanyl can be substituted for heroin in opioid dependent individuals. However, fentanyl is a very dangerous because it is much more potent and results in frequent overdoses that can lead to respiratory depression and death. Some analogs are even more potent. Particularly troubling is the fact that users are often unaware that they are using fentanyl and, therefore, ignorant to the severe risks they face. Fentanyl is inexpensive to produce, making it a go-to heroin substitute for the drug cartels. Finally, fentanyl has proven to be a significant threat to law enforcement personnel and first responders as minute amounts –equivalent to a few grains of salt—can be lethal, and visually, can be mistaken for cocaine or white powder heroin.

Nationwide there has been a significant increase in fentanyl-related overdose fatalities. In Ohio there were 514 fentanyl-related fatal overdoses in 2014 compared to 92 in 2013. Maryland also saw a sharp increase with 185 fentanyl-related fatal overdoses in 2014 compared to 58 in 2013.  Florida had 397 fatal overdoses attributable to fentanyl in 2014, up from 185 in 2013. While most increases in fentanyl overdose fatalities have been in eastern states, law enforcement officials in California fear that the trend is coming to California. Orange County has seen an increase in Fentanyl related cases. For example, Orange County Crime Lab statistics show a 100 percent increase between 2014 (10 cases) and October 2015 (20 cases) in driving under the drug’s influence cases. There has also been an increase in those found in possession of the drug.

SB 1323 amends Section 11370.4 of the Health and Safety Code to include fentanyl with heroin and cocaine in the category of drugs that are subject to enhancements by weight. By doing so, this bill targets those distributing, trafficking, and selling mass quantities of Fentanyl. SB 1323 recognizes that the danger posed by fentanyl use is greater than that of other opioids, but also threatens the lives and safety of those who do not even use it. This bill would therefore take the commonsense step of adding the same enhancements for fentanyl, thereby protecting unknowing users, first responders, and children.

1. Fentanyl and Fentanyl Analogs History and Background

Fentanyl was synthesized in the 1960s and has been used medically since 1968. The Centers for Disease Control and Prevention (CDC) website^[1] provides this description of fentanyl:

Fentanyl, a synthetic and short-acting opioid analgesic, is 50-100 times more potent than morphine and approved for managing acute or chronic pain associated with advanced cancer. …[M]ost cases of fentanyl-related morbidity and mortality have been linked to illicitly manufactured fentanyl and fentanyl analogs, collectively referred to as non-pharmaceutical fentanyl (NPF). NPF is sold via illicit drug markets for its heroin-like effect and often mixed with heroin and/or cocaine as a combination product—with or without the user’s knowledge—to increase its euphoric effects. While NPF-related overdoses can be reversed with naloxone, a higher dose or multiple number of doses per overdose event may be required …due to the high potency of NPF. (Internal quotation marks and footnotes omitted.)

Mixing fentanyl or a fentanyl analog with heroin is not a consistent phenomenon and may change over time and from place to place. A 2015 study^[2] by researchers at the Centers for Disease Control and Prevention investigated acetyl fentanyl overdose deaths in Rhode Island over one year’s time - March 2012 through May 2013, and separately analyzed data from March through May of 2013. 64% of the decedents in the full year data had consumed only acetyl fentanyl, not a mixture of that drug and heroin, although numerous persons had used a mixture of the two drugs. In the14 acetyl fentanyl overdoses from March through May of 2013, the drug was not likely mixed with heroin.

1. DEA Analysis of Current Fentanyl Trends

The Drug Enforcement Administration (DEA) publishes an annual illicit drug “threat assessment.” The assessment reviews trends and issues concerning major drugs of abuse.

The 2105 ^[3]Threat Assessment stated as to fentanyl:

Fentanyl will remain a threat while the current clandestine production continues; however, it is unlikely to assume a significant portion of the opioid market. Fentanyl’s short-lasting high, coupled with its high mortality rate, renders it unappealing to many opioid users who prefer the longer-lasting high that heroin offers and who wish to avoid the increased danger from fentanyl. Fentanyl will continue to remain available in limited quantities; however, it will most commonly be consumed unknowingly, mixed with heroin or other drugs. Fentanyl will remain a significant threat to law enforcement personnel and first responders as minute amounts… can be lethal, and visually, can be mistaken for cocaine or white powder heroin. (Italics added.)

The DEA has reported^[4] to the United States Senate that most illicit fentanyl is produced in Mexico “with its analogs and precursors obtained from distributors in China. Fentanyl is smuggled across the [Southwest U.S. border] in kilogram quantities…”

1. Many Fentanyl Commerce Crimes are Covered by the Current Drug Weight Enhancements, as Fentanyl is Often Mixed with Heroin, a Drug Included in the Current Enhancement

The existing enhancement based on the weight of the drug involved in specified drug commerce crimes includes any substance containing cocaine, cocaine base or heroin. Illicit drug manufacturers, distributors and sellers often mix fentanyl or an analog with heroin, because it is much more potent than heroin and relatively easy and cheap to manufacture. A defendant convicted of commerce involving a mixture of heroin and fentanyl would be subject to the weight enhancement under current law. This bill would only be necessary where the sole drug manufactured, distributed or sold in the underlying crime was fentanyl. However, as noted in Comment #5, prosecutors will likely still need to use the analog statute to implement this bill, as most cases will involve fentanyl analogs, not fentanyl per se.

1. Most Fentanyl Cases Involve a Fentanyl Analog, typically Acetyl Fentanyl

As noted above, most cases that are reported as involving fentanyl actually involve one of numerous fentanyl analogs or derivatives. Fentanyl and alfafentanyl are Schedule II drugs in California. As reflected in federal law, but not specifically stated in California law, Schedule I drugs are deemed to have no medical utility and a high potential for abuse. Schedule II drugs have legitimate medical uses, but also a high potential for abuse. Where a defendant’s crime involved acetyl fentanyl or another related drug that is not listed in the controlled substance schedules, it appears the prosecutor must prove that the drug is an analog of fentanyl. The analog statute applies to Schedule I and Schedule II drugs. (Health & Saf. Code §§ 11054 and 11055.)

Health and Safety Code Section 11401 defines an analog as follows:

(1) A substance the chemical structure of which is substantially similar to the chemical structure of a controlled substance classified in Section 11054 or 11055.

(2) A substance which has, is represented as having, or is intended to have a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to, or greater than, the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance classified in Section 11054 or 11055.

1. Fentanyl Analogs have a Wide Range of Potency and Dangers

Pharmaceutical fentanyl is much more potent than morphine or heroin. However, the analgesic, euphoric and overdose properties of pharmaceutical fentanyl are relatively certain and well known, or can be determined. However, each batch of non-pharmaceutical fentanyl can have very different chemical composition and effects. Acetyl fentanyl is actually less potent than pharmaceutical fentanyl, but that is not true for all fentanyl analogs. There is no consistent ratio of analgesic (pain control), euphoric and overdose properties among fentanyl analogs. That is, the overdose potential of a drug does not necessarily rise or fall with the euphoric and analgesic properties among the analogs. The European Monitoring Centre for Drugs and Drug Addiction (EMCDDA) has written that other analogs have been estimated as being thousands of times more potent than morphine. The EMCDDA^[5]cautioned: “It is difficult to be certain that this increased analgesic potency means that the euphoric effects are similarly increased, and more importantly, whether the overdose potential of these analogues is also increased by the same margin.”

A person who has become accustomed to an analog with comparatively low overdose potential who thereafter uses a drug with a high potential for overdose, is at especially great risk for overdose. For example, the fentanyl analog 3-methylfentanyl, known by the street name of China White, caused many overdose deaths in California in 1978. So-called China White is several hundred times more potent than morphine. Acetyl fentanyl is four to five times more potent than heroin, but substantially less potent than pharmaceutical fentanyl.

7. Research on Sentences as a Deterrent to Crime

Criminal justice experts and commentators have noted that, with regard to sentencing, “a key question for policy development regards whether enhanced sanctions or an enhanced possibility of being apprehended provide any additional deterrent benefits.

Research to date generally indicates that increases in the certainty of punishment, as opposed to the severity of punishment, are more likely to produce deterrent benefits.^[6]

A comprehensive report published in 2014, entitled The Growth of Incarceration in the United States, discusses the effects on crime reduction through incapacitation and deterrence, and describes general deterrence compared to specific deterrence:

A large body of research has studied the effects of incarceration and other criminal penalties on crime. Much of this research is guided by the hypothesis that incarceration reduces crime through incapacitation and deterrence. Incapacitation refers to the crimes averted by the physical isolation of convicted offenders during the period of their incarceration. Theories of deterrence distinguish between general and specific behavioral responses. General deterrence refers to the crime prevention effects of the threat of punishment, while specific deterrence concerns the aftermath of the failure of general deterrence—that is, the effect on reoffending that might result from the experience of actually being punished. Most of this research studies the relationship between criminal sanctions and crimes other than drug offenses. A related literature focuses specifically on enforcement of drug laws and the relationship between those criminal sanctions and the outcomes of drug use and drug prices.^[7]

In regard to deterrence, the authors note that in “the classical theory of deterrence, crime is averted when the expected costs of punishment exceed the benefits of offending. Much of the empirical research on the deterrent power of criminal penalties has studied sentence enhancements and other shifts in penal policy. . . .

Deterrence theory is underpinned by a rationalistic view of crime. In this view, an individual considering commission of a crime weighs the benefits of offending against the costs of punishment. Much offending, however, departs from the strict decision calculus of the rationalistic model. Robinson and Darley (2004) review the limits of deterrence through harsh punishment. They report that offenders must have some knowledge of criminal penalties to be deterred from committing a crime, but in practice often do not.”^[8]

Members may wish to discuss whether the “rationalistic view” of crime described above likely would apply to large-scale fentanyl sellers – that is, whether the sentencing enhancements proposed by this bill would be known by these offenders and, if so, whether the additional time would discourage commission of the crime.

WOULD SEVERE SENTENCE ENHANCEMENTS DISCOURAGE PERSONS FROM ENGAGING IN FENTANYL COMMERCE AND IMPROVE PUBLIC SAFETY?

The authors of the 2014 report discussed above conclude that incapacitation of certain dangerous offenders can have “large crime prevention benefits,” but that incremental, lengthy prison sentences are ineffective for crime deterrence:

Whatever the estimated average effect of the incarceration rate on the crime rate, the available studies on imprisonment and crime have limited utility for policy. The incarceration rate is the outcome of policies affecting who goes to prison and for how long and of policies affecting parole revocation. Not all policies can be expected to be equally effective in preventing crime. Thus, it is inaccurate to speak of the crime prevention effect of incarceration in the singular. Policies that effectively target the incarceration of highly dangerous and frequent offenders can have large crime prevention benefits, whereas other policies will have a small prevention effect or, even worse, increase crime in the long run if they have the effect of increasing postrelease criminality.

Evidence is limited on the crime prevention effects of most of the policies that contributed to the post-1973 increase in incarceration rates. Nevertheless, the evidence base demonstrates that lengthy prison sentences are ineffective as a crime control measure. Specifically, the incremental deterrent effect of increases in lengthy prison sentences is modest at best. Also, because recidivism rates decline markedly with age and prisoners necessarily age as they serve their prison sentence, lengthy prison sentences are an inefficient approach to preventing crime by incapacitation unless they are specifically targeted at very high-rate or extremely dangerous offenders. For these reasons, statutes mandating lengthy prison sentences cannot be justified on the basis of their effectiveness in preventing crime.^[9]

With regard to the drug trade, the authors state:

For several categories of offenders, an incapacitation strategy of crime prevention can misfire because most or all of those sent to prison are rapidly replaced in the criminal networks in which they participate. Street-level drug trafficking is the

paradigm case. Drug dealing is part of a complex illegal market with low barriers to entry. Net earnings are low, and probabilities of eventual arrest and imprisonment are high . . . Drug policy research has nonetheless shown consistently that arrested dealers are quickly replaced by new recruits . . . . At the corner of Ninth and Concordia in Milwaukee in the mid-1990s, for example, 94 drug arrests were made within a 3-month period. “These arrests, [the police officer] pointed out, were easy to prosecute to conviction. But . . . the drug market continued to thrive at the intersection” . . . .

Despite the risks of drug dealing and the low average profits, many young disadvantaged people with little social capital and limited life chances …

sell drugs on street corners because it appears to present opportunities not

otherwise available. However, [they] … overestimate the benefits of

that activity and underestimate the risks. This perception is compounded by peer influences, social pressures, and deviant role models provided by successful dealers who live affluent lives and… avoid arrest. Similar analyses apply to members of deviant youth groups and gangs: as members … are arrested and removed from circulation, others take their place. Arrests and imprisonments of easily replaceable offenders create illicit “opportunities” for others.^[10]

Members may wish to discuss whether the enhancement proposed by this bill would provide any appreciable crime deterrent benefits, and whether greater incapacitation for these offenders could generate the “misfire” consequence described above.

WOULD THE ADDED COSTS OF INCARCERATION FROM EXPANDING THIS SENTENCING ENHANCEMENT BE OUTWEIGHED BY ITS PUBLIC SAFETY BENEFIT, EITHER THROUGH INCAPACITATION OR DETERRENCE?

-- END –

1. http://emergency.cdc.gov/han/han00384.asp ↑

2. http://link.springer.com/article/10.1007%2Fs13181-015-0477-9 ↑

3. http://www.dea.gov/docs/2015%20NDTA%20Report.pdf – p. 43 ↑

4. http://www.dea.gov/pr/speeches-testimony/2015t/111715t.pdf ↑

5. http://www.emcdda.europa.eu/publications/drug-profiles/fentanyl ↑

6. Valerie Wright, Ph.D., Deterrence in Criminal Justice Evaluating Certainty vs. Severity of Punishment (November 2010), The Sentencing Project (http://www.sentencingproject.org/doc/Deterrence%20Briefing%20.pdf.) ↑

7. The Growth of Incarceration in the United States (2014), Jeremy Travis, Bruce Western and Steve Redburn, Editors, Committee on Causes and Consequences of High Rates of Incarceration, The National Research Council, p. 131 (citations omitted) (http://johnjay.jjay.cuny.edu/nrc/NAS_report_on_incarceration.pdf,) ↑

8. Id. at 132-133. ↑

9. Id. at 155-156 (emphasis added). ↑

10. Id., at 146 (citations omitted). ↑