Existing law imposes on a person convicted of a violation of, or of conspiracy to violate, specified crimes relating to controlled substances a full, separate, and consecutive 3-year term for each prior conviction of of, or for each prior conviction of conspiracy to violate, specified controlled substances crimes, including possession for sale and purchase for sale of opiates, opium derivatives, and hallucinogenic substances.

This bill would repeal those provisions. instead limit the above sentence enhancement to only be based on each prior conviction of, or on each prior conviction of conspiracy to violate, the crime of manufacturing specified controlled substances through chemical extraction or synthesis or the crime of using a minor in the commission of offenses involving specified controlled substances.

Existing law imposes on a person convicted of a violation of, or of conspiracy to violate, specified crimes relating to controlled substances a full, separate, and consecutive 3-year term for each prior conviction of specified controlled substances crimes, including possession for sale and purchase for sale of opiates, opium derivatives, and hallucinogenic substances.

This bill would repeal those provisions.

Date of Hearing: June 28, 2016

Chief Counsel: Gregory Pagan

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

SBPCA Bill Id:SB 966

Author:(Mitchell) – As Amended Ver:June 1, 2016

SUMMARY: Limits the current three year enhancement for prior conviction of specified controlled substance offenses to convictions for the manufacture of a controlled substance, or using or employing a minor in the commission of specified controlled substance offenses.

EXISTING LAW:

1. Classifies controlled substances in five schedules according to their danger and potential for abuse. Schedule I controlled substances have the greatest restrictions and penalties, including prohibiting the prescribing of a Schedule I controlled substance. (Health & Saf. Code, §§ 11054 to 11058.)
   
2. Provides that any person convicted of, or conspiracy to commit the sale, furnishing, transportation, or possession for sale of cocaine, cocaine base, heroin, or other specified controlled substances shall, in addition to any other punishment, receive a full, separate, and consecutive three year term of imprisonment in a county jail for each prior conviction for sale, possession for sale, manufacturing, possession with the intent to manufacture specified controlled substances, or using a minor in the commission of specified controlled substance offenses. (Health & Saf. Code, § 11370.2, subd. (a).)
   
3. Provides that any person convicted of, or conspiracy to commit the sale, possession for sale, the manufacture, possession with the intent to manufacture PCP, or using a minor in the commission of specified offenses related to PCP shall, in addition to any other punishment , receive a full, separate, and consecutive three year term of imprisonment in a county jail for each prior conviction for sale, possession for sale, manufacturing, possession with the intent to manufacture specified controlled substances, or using a minor in the commission of specified controlled substance offenses. (Health & Saf. Code, § 11370.2, subd. (a).)
   
4. Provides that every person that transports, imports into the state, sells, furnishes, administers, or gives away, or offers to transport, import into the state, sell, furnish, or give away, or attempts to import into this state or transport cocaine, cocaine base, or heroin, or other specified controlled substances listed in the controlled substance schedule, without a written prescription from a licensed physician, dentist, podiatrist, or veterinarian shall be punished by imprisonment for three, four, or five years. (Health & Saf. Code, § 11352, subd. (a).)
   
5. States, except as provided, that every person who possesses for sale or purchases for purposes of sale any of the specified controlled substances, including cocaine and heroin, shall be punished by imprisonment in a county jail for two, three, or four years. (Health & Saf. Code, § 11351.)
   
   
6. Provides that every person that transports, imports into the state, sells, furnishes, administers, or gives away, or offers to transport, import into the state, sell, furnish, or give away, or attempts to import into this state or transport methamphetamine, or other specified controlled substances listed in the controlled substance schedule, without a written prescription from a licensed physician, dentist, podiatrist, or veterinarian shall be punished by imprisonment for two, three, or four years. (Health & Saf. Code, § 11379, subd. (a).)
   
7. States that the possession for sale of methamphetamine, and other specified controlled substances is punishable by imprisonment in a county jail for 16 months, or two or three years. (Health & Saf. Code, § 11378.)
   
8. Provides that any person who manufactures, compounds, converts, produces, derives, processes, or prepares specified controlled substances is guilty of a felony, punishable by imprisonment in the state prison for three, five or seven years. (Health & Saf. Code, § 11379.6.)
   
9. Any person who possesses specified chemicals with the intent to manufacture methamphetamine or PCP shall be punished by two, four, or six years in state prison. (Health & Saf. Code, § 11383.)

FISCAL EFFECT: Unknown

COMMENTS:

1. Author's Statement: According to the author, " SB 966 would begin undoing the damage of the failed War on Drugs. Long sentences that were central to the drug war strategy — driven by mandatory sentences like the enhancement SB 966 will repeal — utterly failed to reduce drug availability or the number of people harmed in the illicit drug market. Controlled substances are now cheaper and more widely available than ever before, despite a massive investment of tax revenue and human lives in an unprecedented build-up and fill-up of prisons and jails that have devastated low-income communities of color.

"By amending the sentencing enhancement for prior non-violent drug convictions, this bill will improve public safety and community well-being, reduce racial disparities in the criminal justice system, and allow public funds to be invested in community-based programs instead of costly jail expansion.

"SB966 would address extreme sentences. Enhancements result in sentences being far more severe than is just, sensible, or effective. Under current law, a person may face two to four years in jail for possessing drugs for sale under the base sentence. But if the person has two prior convictions for possession for sale, they would face an additional six years in jail – for a total of ten years. As of 2014, there were more than 1,700 people in California jails sentenced to more than five years. The leading cause of these long sentences was non-violent drug sale offenses.

"SB 966 would reduce racial disparities in the criminal justice system. Although rates of drug use and sales are comparable across racial lines, people of color are far more likely to be stopped, searched, arrested, prosecuted, convicted, and incarcerated for drug law violations than are whites. Research also shows that prosecutors are twice as likely to pursue a mandatory minimum sentence for Blacks as for whites charged with the same offense.

"SB 966 would help restore balance in the judicial process. Prosecutors use enhancements as leverage to extract guilty pleas, even from the innocent. Prosecutors threaten to use enhancements to significantly increase the punishment defendants would face should they exercise their right to a trial. According to Human Rights Watch, “plea agreements have for all intents and purposes become an offer drug defendants cannot afford to refuse.”

"SB 966 will stop the cruel punishment of persons suffering from a substance abuse disorder.  People who suffer untreated substance abuse disorders often sell drugs to pay for the drugs that their illness compels them to consume. It is fundamentally unjust, as well as counterproductive, to put a sick person in jail to address behaviors better handled in a medical or treatment setting."

1. Background: The enhancement for prior drug crime convictions was enacted through AB 2320 (Condit), Chapter 1398, Statutes of 1985). The bill included legislative intent “to punish more severely those persons who are in the regular business of trafficking in, or production of, narcotics and those persons who deal in large quantities of narcotics as opposed to individuals who have a less serious, occasional, or relatively minor role in this activity.”

The bill - called “The Dealer Statute” - was sponsored by the Los Angeles District Attorney and also included enhancements based on the weight of the drug involved in specified drug commerce crime. The sponsor explained that the bill was modeled on particularly harsh federal drug crime laws. The sponsor argued that the bill was necessary to eliminate an incentive for persons “to traffic [in drugs] in California where sentences are significantly lighter than in federal law.” The federal laws to which the sponsor referred were those enacted in the expansion of the war against drugs during the Reagan administration. These laws included reduced judicial discretion through mandatory minimum sentences. The current administration has begun to pull back on some of the harshest policies and Congress has passed some sentence reductions, most notably reducing the disparity between cocaine powder crimes and cocaine base crimes.

1. Argument in Support: According to the American Civil Liberties Union, "SB 966 will repeal the harsh three-year enhancement for prior nonviolent drug offenses. The enhancement, which has failed to protect communities or reduce the availability of drugs, but has crippled state and local budgets and contributed to jail and prison overcrowding, is one of the many enhancements overdue for repeal.
   
   "Sentence enhancements based on prior convictions target the poorest and most marginalized people in our communities: those with substance use and mental health needs, and those who, after prior contact with police or imprisonment, have struggled to reintegrate into society. These and other long sentences, central to the war on drugs, have utterly failed to reduce drug availability or protect people harmed in the illicit drug market, yet they have devastated low-income communities of color, broken up families, and disrupted lives in California and across the country. Despite significant financial investments in criminal prosecutions and imprisonment, controlled substances are now cheaper and more widely available than ever before, and our communities are no safer.
   
   “As a result of California’s lengthy sentences, including enhancements like the ones addressed by SB 966, counties around the state are building new jails to imprison people with long sentences. Since 2007, California has spent $2.2 billion on county jail construction, not including the costs borne by the counties for construction and increased staffing, or the state’s debt service for high-interest loans. Sheriffs have argued for this expansion by pointing to their growing jail populations, particularly people with long sentences and with mental health and substance us needs. However, jail expansion has not improved public safety and has instead funneled money away from the community-based programs and services that have proven to successfully reduce crime.
   
   “By reducing sentences for people with prior drug convictions, SB 966 will allow state and county funds to instead be invested in programs and services that meet community needs and improve public safety, including community-based mental health and substance use treatment, job programs, and affordable housing. SB 966 will ease overcrowding in our county jails, making them safer for inmates and jail staff alike. And lastly, SB 966 will start to undo the state’s shameful legacy of archaic drug laws that have been used to target communities of color for decades.”
2. Argument in Opposition: According to the Office of the San Diego County District Attorney, "Currently, the Office of National Drug Control Policy reports our nation is in the grips of an opioid epidemic, and California is not immune. In 2013, California hospitals treated more than 11,500 patients suffering an opioid or heroin overdose; this is about one overdose every 45 minutes. Now is not the time to reduce penalties for sales and trafficking of opioids. Other states are actually increasing the penalties for trafficking in certain opioids. Legislation aimed at funding educational and prevention programs to reduce the current opioid addiction epidemic would better serve all Californians.
   
   “SB 966 repeals the current three year sentence enhancement for defendants convicted of specified drug sales and possession for sale crimes who have prior convictions for drug sales or possession for sale offenses. The scenario we will face is one where a defendant with multiple convictions for drug sales or possession for sale, or drug manufacturing offenses would be treated the same as a first time offender. This would include reducing the sentences for those who knowingly manufacture “Norco” pills laced with fentanyl, an opiate about 100 times stronger than heroin. The first time offender may need education or treatment for opioid addiction, while the defendant with multiple convictions for sales should receive punishment.
   
   “Heroin addiction has spiked in recent years, especially for counties along the U.S. – Mexico border. In 2014, more than 300 San Diegans died from heroin overdoses, and the percentages of men and women booked into county jail who tested positive for heroin or other opiates were the highest since tracking began in 2000. The problem is severe enough locally that patrol deputies in the San Diego Sheriff’s Department are now equipped to administer a drug that counteracts the effects of heroin and other opioids. Overall, experts say heroin use in San Diego County is at its highest rate in 15 years. Experts say the resurgent heroin epidemic stems in part from doctors’ over-prescription of legal opioid pain killers such as Oxycodone or its time release cousin, OxyContin. When addicts can no longer afford, or find these particularly addictive over-the-counter drugs, they move on to heroin. Drug cartels are taking notice of the demand and in 2014, law enforcement agencies in the U.S. seized triple the amount of heroin confiscated in 2009. SB 966 will allow these drug dealers to escape the additional punishment they deserve.”
   

REGISTERED SUPPORT / OPPOSITION:

Support

American Civil Liberties Union of California (Co-sponsor)

Drug Policy Alliance (Co-sponsor)

Ella Baker Center for Human Rights (Co-sponsor)

A New Path

A New Way of Life Reentry Project

ACCE Action

Alameda County Public Defender

Alliance for Mena and boys of Color

American Friends Service Committee

Arts for Incarcerated Youth Network

Asian American Criminal Trial Lawyers Association

Asian Americans Advancing Justice-California

Asian Pacific Environmental Network

Bay Area Black Worker Center

Bay Area Community Resource Workforce Development

Bend the Arc: A Jewish Partnership for Justice

Black Women Organized for Political Action

California Association for Alcohol and Drug Program Executives, Inc.

California Attorneys for Criminal Justice

California Coalition for Women Prisoners

California Immigrant Policy Center

California Partnership

California Prison Moratorium Project

California Public Defenders Association

California State Conference of the National Association for the Advancement of Colored People

Californians for Safety and Justice

Californians United for a Responsible Budget

Center for Employment Opportunity

Center for Health Justice

Center for Living and Learning

Center on Juvenile and Criminal Justice

Centro Legal de la Raza

Coalition for Humane Immigration Rights for Los Angeles

Communities United for Restorative Justice

Community Works

Contra Costa County Public Defender's Office

Courage Campaign

Critical Resistance Los Angeles

East Bay Alliance for a Sustainable Economy

Enlace

Essie Justice Group

Felony Murder Elimination Project

Filipino Bar Association of California

Forward Together

Four Private Citizens

Friends Committee on legislation California

Harm Reduction Services

Health Communities, Inc.

HealthRIGHT 360

HIV Education & Prevention Program of Alameda County

Holman United Methodist Church

Inland Coalition for Immigrant Justice

Islamic Shura Council of southern California

John Gioia, Contra Costa County Board of Supervisors

Justice Not Jails

Justice Policy Institute

Law Enforcement Against Prohibition

Lawyers' Committee for Civil Rights

Legal Services for Prisoners with Children

Los Angeles Community Action Network

Los Angeles County Public Defender

Marijuana Lifer Project

Mayor of the City of Richmond

Monterey Bay Central Labor Council, AFL-CIO

Mortgage Personnel Services

Motivating Individual Leadership for Public Advancement (MILPA)

National Association of Public Defense

National Association of Social Workers, California Chapter

National Center for Youth Law

National Council on La Raza

National Employment Law Project

Needle Exchange Emergency Distribution

Oakland Rising

Orange County Needle Exchange Group

Poetic Knights I.N.C.

Presente.org

Prison Activist Resource Center

Prison Law Office

Prison Policy Initiative

Project Inform

Reentry Solutions Group

Reentry Success Center

Reform California

Resource Center for Nonviolence

Riverside Temple Beth El

Root & Rebound

Rubicon Programs

S.T.O.P. Hepatitis Task-Force

Safe Return Project

San Diego Organizing Project

San Francisco Public Defender

Santa Cruz County Community Coalition to Overcome Racism

Silicon Valley De-Bug

Social Justice Learning Institute

Starting Over, Inc.

Swords to Plowshares

Tarzana Treatment Centers, Inc.

TGI Justice Project

The Sentencing Project

Time for Change Foundation

Time For Change Foundation

Underground Scholars Initiative, UC Berkeley

Unite Here, Local 2850

W. Haywood Burns Institute

Western Regional Advocacy Project

Women's Council of the California Chapter of the National Association of Social Workers

Women's Foundation of California

Young Women's Freedom Center

Opposition

Association for Los Angeles Deputy Sheriffs

Association of Deputy District Attorneys

Association of Orange County Deputy Sheriffs

California Association of Code Enforcement Officers

California College and University Police Chiefs Association
California District Attorneys Association

California Narcotics Officers Association

California Police Chiefs Association

California State Law Enforcement Association

California State Sheriffs' Association

Fraternal Order of Police, California State Lodge

Long Beach Police Officers Association

Los Angeles County District Attorney's Office

Los Angeles County Professional Peace Officers Association

Los Angeles Police Protective League

Office of the San Diego District Attorney

Peace Research Association of California

Riverside Sheriffs Association

Sacramento Deputy Sheriffs Association

San Diego County District Attorney's Office

Analysis Prepared by: Gregory Pagan / PUB. S. / (916) 319-3744

Date of Hearing: June 21, 2016

Chief Counsel: Gregory Pagan

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

SBPCA Bill Id:SB 966

Author:(Mitchell) – As Amended Ver:June 1, 2016

SUMMARY: Limits the current three year enhancement for prior conviction of specified controlled substance offenses to convictions for the manufacture of a controlled substance, or using or employing a minor in the commission of specified controlled substance offenses.

EXISTING LAW:

1. Classifies controlled substances in five schedules according to their danger and potential for abuse. Schedule I controlled substances have the greatest restrictions and penalties, including prohibiting the prescribing of a Schedule I controlled substance. (Health & Saf. Code, §§ 11054 to 11058.)
   
2. Provides that any person convicted of, or conspiracy to commit the sale, furnishing, transportation, or possession for sale of cocaine, cocaine base, heroin, or other specified controlled substances shall, in addition to any other punishment, receive a full, separate, and consecutive three year term of imprisonment in a county jail for each prior conviction for sale, possession for sale, manufacturing, possession with the intent to manufacture specified controlled substances, or using a minor in the commission of specified controlled substance offenses. (Health & Saf. Code, § 11370.2, subd. (a).)
   
3. Provides that any person convicted of, or conspiracy to commit the sale, possession for sale, the manufacture, possession with the intent to manufacture PCP, or using a minor in the commission of specified offenses related to PCP shall, in addition to any other punishment , receive a full, separate, and consecutive three year term of imprisonment in a county jail for each prior conviction for sale, possession for sale, manufacturing, possession with the intent to manufacture specified controlled substances, or using a minor in the commission of specified controlled substance offenses. (Health & Saf. Code, § 11370.2, subd. (a).)
   
4. Provides that every person that transports, imports into the state, sells, furnishes, administers, or gives away, or offers to transport, import into the state, sell, furnish, or give away, or attempts to import into this state or transport cocaine, cocaine base, or heroin, or other specified controlled substances listed in the controlled substance schedule, without a written prescription from a licensed physician, dentist, podiatrist, or veterinarian shall be punished by imprisonment for three, four, or five years. (Health & Saf. Code, § 11352, subd. (a).)
   
5. States, except as provided, that every person who possesses for sale or purchases for purposes of sale any of the specified controlled substances, including cocaine and heroin, shall be punished by imprisonment in a county jail for two, three, or four years. (Health & Saf. Code, § 11351.)
   
   
6. Provides that every person that transports, imports into the state, sells, furnishes, administers, or gives away, or offers to transport, import into the state, sell, furnish, or give away, or attempts to import into this state or transport methamphetamine, or other specified controlled substances listed in the controlled substance schedule, without a written prescription from a licensed physician, dentist, podiatrist, or veterinarian shall be punished by imprisonment for two, three, or four years. (Health & Saf. Code, § 11379, subd. (a).)
   
7. States that the possession for sale of methamphetamine, and other specified controlled substances is punishable by imprisonment in a county jail for 16 months, or two or three years. (Health & Saf. Code, § 11378.)
   
8. Provides that any person who manufactures, compounds, converts, produces, derives, processes, or prepares specified controlled substances is guilty of a felony, punishable by imprisonment in the state prison for three, five or seven years. (Health & Saf. Code, § 11379.6.)
   
9. Any person who possesses specified chemicals with the intent to manufacture methamphetamine or PCP shall be punished by two, four, or six years in state prison. (Health & Saf. Code, § 11383.)

FISCAL EFFECT: Unknown

COMMENTS:

1. Author's Statement: According to the author, " SB 966 would begin undoing the damage of the failed War on Drugs. Long sentences that were central to the drug war strategy — driven by mandatory sentences like the enhancement SB 966 will repeal — utterly failed to reduce drug availability or the number of people harmed in the illicit drug market. Controlled substances are now cheaper and more widely available than ever before, despite a massive investment of tax revenue and human lives in an unprecedented build-up and fill-up of prisons and jails that have devastated low-income communities of color.

"By amending the sentencing enhancement for prior non-violent drug convictions, this bill will improve public safety and community well-being, reduce racial disparities in the criminal justice system, and allow public funds to be invested in community-based programs instead of costly jail expansion.

"SB966 would address extreme sentences. Enhancements result in sentences being far more severe than is just, sensible, or effective. Under current law, a person may face two to four years in jail for possessing drugs for sale under the base sentence. But if the person has two prior convictions for possession for sale, they would face an additional six years in jail – for a total of ten years. As of 2014, there were more than 1,700 people in California jails sentenced to more than five years. The leading cause of these long sentences was non-violent drug sale offenses.

"SB 966 would reduce racial disparities in the criminal justice system. Although rates of drug use and sales are comparable across racial lines, people of color are far more likely to be stopped, searched, arrested, prosecuted, convicted, and incarcerated for drug law violations than are whites. Research also shows that prosecutors are twice as likely to pursue a mandatory minimum sentence for Blacks as for whites charged with the same offense.

"SB 966 would help restore balance in the judicial process. Prosecutors use enhancements as leverage to extract guilty pleas, even from the innocent. Prosecutors threaten to use enhancements to significantly increase the punishment defendants would face should they exercise their right to a trial. According to Human Rights Watch, “plea agreements have for all intents and purposes become an offer drug defendants cannot afford to refuse.”

"SB 966 will stop the cruel punishment of persons suffering from a substance abuse disorder.  People who suffer untreated substance abuse disorders often sell drugs to pay for the drugs that their illness compels them to consume. It is fundamentally unjust, as well as counterproductive, to put a sick person in jail to address behaviors better handled in a medical or treatment setting."

1. Background: The enhancement for prior drug crime convictions was enacted through AB 2320 (Condit), Chapter 1398, Statutes of 1985). The bill included legislative intent “to punish more severely those persons who are in the regular business of trafficking in, or production of, narcotics and those persons who deal in large quantities of narcotics as opposed to individuals who have a less serious, occasional, or relatively minor role in this activity.”

The bill - called “The Dealer Statute” - was sponsored by the Los Angeles District Attorney and also included enhancements based on the weight of the drug involved in specified drug commerce crime. The sponsor explained that the bill was modeled on particularly harsh federal drug crime laws. The sponsor argued that the bill was necessary to eliminate an incentive for persons “to traffic [in drugs] in California where sentences are significantly lighter than in federal law.” The federal laws to which the sponsor referred were those enacted in the expansion of the war against drugs during the Reagan administration. These laws included reduced judicial discretion through mandatory minimum sentences. The current administration has begun to pull back on some of the harshest policies and Congress has passed some sentence reductions, most notably reducing the disparity between cocaine powder crimes and cocaine base crimes.

1. Argument in Support: According to the American Civil Liberties Union, "SB 966 will repeal the harsh three-year enhancement for prior nonviolent drug offenses. The enhancement, which has failed to protect communities or reduce the availability of drugs, but has crippled state and local budgets and contributed to jail and prison overcrowding, is one of the many enhancements overdue for repeal.
   
   "Sentence enhancements based on prior convictions target the poorest and most marginalized people in our communities: those with substance use and mental health needs, and those who, after prior contact with police or imprisonment, have struggled to reintegrate into society. These and other long sentences, central to the war on drugs, have utterly failed to reduce drug availability or protect people harmed in the illicit drug market, yet they have devastated low-income communities of color, broken up families, and disrupted lives in California and across the country. Despite significant financial investments in criminal prosecutions and imprisonment, controlled substances are now cheaper and more widely available than ever before, and our communities are no safer.
   
   “As a result of California’s lengthy sentences, including enhancements like the ones addressed by SB 966, counties around the state are building new jails to imprison people with long sentences. Since 2007, California has spent $2.2 billion on county jail construction, not including the costs borne by the counties for construction and increased staffing, or the state’s debt service for high-interest loans. Sheriffs have argued for this expansion by pointing to their growing jail populations, particularly people with long sentences and with mental health and substance us needs. However, jail expansion has not improved public safety and has instead funneled money away from the community-based programs and services that have proven to successfully reduce crime.
   
   “By reducing sentences for people with prior drug convictions, SB 966 will allow state and county funds to instead be invested in programs and services that meet community needs and improve public safety, including community-based mental health and substance use treatment, job programs, and affordable housing. SB 966 will ease overcrowding in our county jails, making them safer for inmates and jail staff alike. And lastly, SB 966 will start to undo the state’s shameful legacy of archaic drug laws that have been used to target communities of color for decades.”
2. Argument in Opposition: According to the Office of the San Diego County District Attorney, "Currently, the Office of National Drug Control Policy reports our nation is in the grips of an opioid epidemic, and California is not immune. In 2013, California hospitals treated more than 11,500 patients suffering an opioid or heroin overdose; this is about one overdose every 45 minutes. Now is not the time to reduce penalties for sales and trafficking of opioids. Other states are actually increasing the penalties for trafficking in certain opioids. Legislation aimed at funding educational and prevention programs to reduce the current opioid addiction epidemic would better serve all Californians.
   
   “SB 966 repeals the current three year sentence enhancement for defendants convicted of specified drug sales and possession for sale crimes who have prior convictions for drug sales or possession for sale offenses. The scenario we will face is one where a defendant with multiple convictions for drug sales or possession for sale, or drug manufacturing offenses would be treated the same as a first time offender. This would include reducing the sentences for those who knowingly manufacture “Norco” pills laced with fentanyl, an opiate about 100 times stronger than heroin. The first time offender may need education or treatment for opioid addiction, while the defendant with multiple convictions for sales should receive punishment.
   
   “Heroin addiction has spiked in recent years, especially for counties along the U.S. – Mexico border. In 2014, more than 300 San Diegans died from heroin overdoses, and the percentages of men and women booked into county jail who tested positive for heroin or other opiates were the highest since tracking began in 2000. The problem is severe enough locally that patrol deputies in the San Diego Sheriff’s Department are now equipped to administer a drug that counteracts the effects of heroin and other opioids. Overall, experts say heroin use in San Diego County is at its highest rate in 15 years. Experts say the resurgent heroin epidemic stems in part from doctors’ over-prescription of legal opioid pain killers such as Oxycodone or its time release cousin, OxyContin. When addicts can no longer afford, or find these particularly addictive over-the-counter drugs, they move on to heroin. Drug cartels are taking notice of the demand and in 2014, law enforcement agencies in the U.S. seized triple the amount of heroin confiscated in 2009. SB 966 will allow these drug dealers to escape the additional punishment they deserve.”
   

REGISTERED SUPPORT / OPPOSITION:

Support

Ella Baker Center for Human Rights (Co-sponsor)
Drug Policy Alliance (Co-sponsor)
American Civil Liberties Union of California (Co-sponsor)
California Attorneys for Criminal Justice

American Friends Service Committee
California Immigrant Policy Center
Friends Committee on legislation California
Enlace
Prison Policy Initiative
Lawyers' Committee for Civil Rights
Riverside Temple Beth El
Reform California
Los Angeles County Public Defender
Reentry Success Center
Californians United for a Responsible Budget
California Public Defenders Association
National Association of Social Workers, California Chapter
Center on Juvenile and Criminal Justice
Project Inform
Oakland Rising
Needle Exchange Emergency Distribution
Alliance for Mena and boys of Color
Bend the Arc: A Jewish Partnership for Justice
Legal Services for Prisoners with Children
California Partnership
Bay Area Black Worker Center
Community Works
Women's Council of the California Chapter of the National Association of Social Workers
Law Enforcement Against Prohibition
Islamic Shura Council of southern California
Time for Change Foundation
Coalition for Humane Immigration Rights for Los Angeles
Forward Together
HIV Education & Prevention Program of Alameda County
Social Justice Learning Institute
Santa Cruz County Community Coalition to Overcome Racism
California Coalition for Women Prisoners
San Francisco Public Defender
Asian American Criminal Trial Lawyers Association
Starting Over, Inc.
Essie Justice Group
Silicon Valley De-Bug
Rubicon Programs
Arts for Incarcerated Youth Network
San Diego Organizing Project
Swords to Plowshares
TGI Justice Project
The Sentencing Project
Tarzana Treatment Centers, Inc.
Unite Here, Local 2850
Young Women's Freedom Center
Mayor of the City of Richmond
California Prison Moratorium Project
John Gioia, Contra Costa County Board of Supervisors
Californians for Safety and Justice
Harm Reduction Services
Time For Change Foundation
A New Way of Life Reentry Project
Asian Americans Advancing Justice-California
Black Women Organized for Political Action
California Association for Alcohol and Drug Program Executives, Inc.
Contra Costa County Public Defender's Office
Center for Health Justice
Center for Living and Learning
Center for Employment Opportunity
Critical Resistance Los Angeles
Communities United for Restorative Justice
Health Communities, Inc.
Justice Not Jails
Los Angeles Community Action Network
Centro Legal de la Raza
Mortgage Personnel Services
Motivating Individual Leadership for Public Advancement (MILPA)
Holman United Methodist Church
Justice Policy Institute
Women's Foundation of California
Alameda County Public Defender
Underground Scholars Initiative, UC Berkeley
Marijuana Lifer Project
Filipino Bar Association of California
Monterey Bay Central Labor Council, AFL-CIO
National Association of Public Defense
National Center for Youth Law
A New Path
California State Conference of the National Association for the Advancement of Colored People
HealthRIGHT 360
East Bay Alliance for a Sustainable Economy
Courage Campaign
Safe Return Project
Reentry Solutions Group
Western Regional Advocacy Project
Asian Pacific Environmental Network
S.T.O.P. Hepatitis Task-Force
W. Haywood Burns Institute
Inland Coalition for Immigrant Justice
Bay Area Community Resource Workforce Development
Resource Center for Nonviolence
Presente.org
Prison Law Office
Prison Activist Resource Center
Orange County Needle Exchange Group
National Employment Law Project
Poetic Knights I.N.C.
ACCE Action
Root & Rebound
Four Private Citizens

Opposition

California District Attorneys Association
California Police Chiefs Association
California State Sheriffs' Association

Office of the San Diego District Attorney
Peace Research Association of California
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
Los Angeles County Professional Peace Officers Association
Los Angeles Police Protective League
Riverside Sheriffs Association
Fraternal Order of Police, California State Lodge
California State Law Enforcement Association
Sacramento Deputy Sheriffs Association
Long Beach Police Officers Association
Association of Orange County Deputy Sheriffs

Analysis Prepared by: Gregory Pagan / PUB. S. / (916) 319-3744

 THIRD READING 

Bill No: SB 966

Author: Mitchell (D)

Amended: 6/1/16

Vote: 21

SENATE PUBLIC SAFETY COMMITTEE: 4-3, 4/5/16

AYES: Hancock, Leno, Liu, Monning

NOES: Anderson, Glazer, Stone

SENATE FLOOR: 18-16, 4/25/16 (FAIL)

AYES: Allen, Beall, Block, De León, Hall, Hancock, Hernandez, Hill, Lara, Leno, Leyva, Liu, McGuire, Mitchell, Monning, Pan, Pavley, Wieckowski

NOES: Anderson, Bates, Berryhill, Cannella, Fuller, Gaines, Galgiani, Glazer, Huff, Moorlach, Morrell, Nguyen, Nielsen, Roth, Stone, Vidak

NO VOTE RECORDED: Hertzberg, Hueso, Jackson, Mendoza, Runner, Wolk

SUBJECT: Controlled substances: sentence enhancements: prior convictions

SOURCE: Author

DIGEST: This bill limits the current enhancement for specified drug commerce crimes under which a defendant receives an additional term of three years for each prior conviction of any one of the listed crimes to cases where the defendant was previously convicted of manufacturing of a controlled substance or involving a minor in a wide range of drug offenses.

Senate Floor Amendments of 6/1/16 limit application of a 3-year enhancement for each prior drug conviction to persons whose current offense is a specified drug commerce offense and the defendant’s prior convictions were manufacturing a controlled substance, using a minor in a wide range of controlled substance offense or furnishing any of such controlled substances to a minor .

ANALYSIS:

Existing law:

1. Classifies controlled substances in five schedules according to their medical utility and potential for abuse. Schedule I controlled substances are deemed to have no accepted medical uses and cannot be prescribed. Examples of drugs in the California Schedule include the following:

• Cocaine, heroin and marijuana are Schedule I drugs.
• Methamphetamine, oxycodone and codeine are Schedule II drugs.
• Barbiturates (tranquilizers, anabolic steroids and specified narcotic, pain medications are Schedule III drugs.
• Benzodiazepines (Valium) and phentermine (diet drug) are Schedule IV drugs.
• Specified narcotic pain medications with active non-narcotic active ingredients are Schedule V drugs. (Health & Saf. Code §§ 11054-11058.)

1. Provides penalties for possession, possession for purposes of sale, and manufacturing of controlled substances. Sentences for drug offenses are typically subject to Penal Code Section 1170 (h). Convicted defendants serve felony sentences in county jails, unless disqualified by prior serious felony convictions or by being a registered sex offender. (Health & Saf. Code §§ 11350-11401.)
2. Includes a myriad of enhancements for controlled substance crimes. These include enhancements for drug crimes that involve or affect minors, for the weight or volume of the substance and prior drug-crime convictions. (See. Health & Saf. Code §§ 11370.2, 11370.4, 1353.4, 11353.6, subd. (b), and 11379.7.)
3. Provides that where a person is convicted in a current case of one of a list of specified drug commerce crimes, and the person has been previously convicted of any of these crimes, he or she shall receive a sentence enhancement of three years for each prior conviction, to be served in jail unless the defendant is disqualified from a jail term by prior serious felony convictions or sex offender registration, or another statute requires a prison term. (Health & Saf. § 11370.2.) The enhancement covers a conviction for conspiracy to commit any of the listed crimes. The qualifying offenses are as follows. All statutory references in the list are to the Health and Safety Code:

• Possession for sale of cocaine, heroin, specified opiates or other specified drugs - § 11350
• Possession for sale of cocaine base - § 11351.5
• Possession for sale of cocaine, heroin, specified opiates and other specified drugs - § 11351
• Sale, distribution or transportation of cocaine, cocaine base heroin, specified opiates - § 11352
• Possession for sale of methamphetamine or specified other drugs - § 11378
• Sale, distribution or transportation of methamphetamine or specified other drugs - § 11379
• Possession for sale of PCP - § 11378.5
• Sale, distribution or transportation of PCP - § 11379.5
• Manufacturing any controlled substance through chemical extraction or synthesis - § 11379.6
• Manufacturing any controlled substance through chemical extraction or synthesis, with an enhancement based on the weight of the substance containing the drug - § 11379.8
• Using a minor in the commission of specified drug offenses - § 11380
• Possession of precursor chemicals with intent to manufacture PCP - § 11383

This bill:

1. Limits the current enhancement for specified drug commerce crimes under which a defendant receives an additional term of three years for each prior conviction of any one of the listed crimes to cases where the defendant was previously convicted of manufacturing of a controlled substance or involving a minor in a wide range of drug offenses.
2. Provides that defendants eligible for the enhancement are those convicted in the current case of possession for sale or sale of heroin, cocaine, methamphetamine, PCP and other specified drugs, manufacturing of a controlled substance and possession of precursor chemicals with the intent to manufacture PCP.

Background

The enhancement for prior drug crime convictions was enacted through AB 2320 (Condit, Chapter 1398, Statutes of 1985). The bill included legislative intent “to punish more severely those persons who are in the regular business of trafficking in, or production of, narcotics and those persons who deal in large quantities of narcotics as opposed to individuals who have a less serious, occasional, or relatively minor role in this activity.”

The bill - called “The Dealer Statute” - was sponsored by the Los Angeles District Attorney and also included enhancements based on the weight of the drug involved in specified drug commerce crime. The sponsor explained that the bill was modeled on particularly harsh federal drug crime laws. The sponsor argued that the bill was necessary to eliminate an incentive for persons “to traffic [in drugs] in California where sentences are significantly lighter than in federal law.” The federal laws to which the sponsor referred were those enacted in the expansion of the so-called war against drugs during the Reagan administration. These laws included reduced judicial discretion through mandatory minimum sentences. The current administration has begun to pull back on some of the harshest policies and Congress has passed some sentence reductions, most notably reducing the disparity between cocaine powder crimes and cocaine base crimes.

Extensive research has found that raising penalties generally do not deter potential perpetrators from committing crimes. The most effective deterrent is certainty of being arrested. In the context of drug commerce, researchers noted that drug sellers who were prosecuted and incarcerated were quickly replaced in the community. It could thus be argued that enhancements such as those repealed by this bill could increase the number of persons involved in drug crimes. (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.) 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.)

FISCAL EFFECT: Appropriation: No Fiscal Com.: No Local: No

SUPPORT: (Verified 6/1/16)

A New Way of Life

American Civil Liberties Union of California

American Friends Service Committee

Arts for Incarcerated Youth Network

Bay Area Black Worker Center

California Attorneys for Criminal Justice

California Coalition for Women Prisoners

California Partnership

California Public Defenders Association

Californians for Safety and Justice

Center for Health Justice

Center for Living and Learning

Center on Juvenile and Criminal Justice

Centro Legal de la Raza

Communities United for Restorative Youth Justice

Contra Costa County Public Defender’s Office

Courage Campaign

Critical Resistance Los Angeles

Fathers & Families of San Joaquin

Forward Together

Friends Committee on Legislation

Harm Reduction Services

HealthRIGHT360

Healthy Communities Inc.

HIV Education and Prevention Project of Alameda County

Human Rights of the Incarcerated Coalition

Islamic Shura Council of Southern California

Justice Now

Justice Policy Institute

Law Enforcement Against Prohibition

Lawyers’ Committee for Civil Rights, S.F

Legal Services for Prisoners with Children

Los Angeles Community Action Network

Monterey Bay Central Labor Council, AFL-CIO

Mortgage Personnel Services

National Association of Social Workers

National Center for Youth Law

Oakland Rising

Prison Activist Resource Center

Prison Law Office

Prison Policy Initiative

Project Inform RYSE

Reentry Success Center

San Diego Organizing Project

San Francisco Public Defender

Silicon Valley Debug

Transgender, Gender-variant, Intersex Justice Project

United Against Violence

W. Haywood Burns Institute

Women’s Council of the California Chapter, National Association of Social Workers

Women’s Foundation of California

Young Women’s Freedom Center

2 individuals

OPPOSITION: (Verified 6/1/16)

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 District Attorneys Association

California Narcotic Officers Association

California Police Chiefs Association

California State Sheriffs’ Association

International Faith Based Coalition

Los Angeles County Professional Peace Officers Association

Los Angeles Police Protective League

Peace Officers Research Association of California

Riverside Sheriffs’ Association

ARGUMENTS IN SUPPORT: The author argues, “Sentence enhancements based on prior convictions target the poorest and most marginalized people in our communities — those with substance use and mental health needs, and those who … have struggled to integrate into free society. Counties… are building new jails to imprison more people with long sentences, funneling money away from community-based programs and services. People with drug issues, particularly those in low-income communities of color, are increasingly left with the choice of seeking help in a jail or not seeking help at all.”

ARGUMENTS IN OPPOSITION: The California Police Chiefs Association argues that it is wrong to treat repeat drug offenders the same as a person convicted of his first offense. The Association notes the current opioid epidemic and states, “Clearly there is an enhanced level of seriousness posed to [the public] by career opioid traffickers and the enhanced sentence…under current law should be retained.”

Prepared by: Jerome McGuire / PUB. S. /

6/1/16 18:41:44

**** END ****

 THIRD READING  

Bill No: SB 966

Author:

:

Vote:

SENATE PUBLIC SAFETY COMMITTEE: 4-3, 4/5/16

AYES: Hancock, Leno, Liu, Monning

NOES: Anderson, Glazer, Stone

SENATE FLOOR: 18-16, 4/25/16 (FAIL)

AYES: Allen, Beall, Block, De León, Hall, Hancock, Hernandez, Hill, Lara, Leno, Leyva, Liu, McGuire, Mitchell, Monning, Pan, Pavley, Wieckowski

NOES: Anderson, Bates, Berryhill, Cannella, Fuller, Gaines, Galgiani, Glazer, Huff, Moorlach, Morrell, Nguyen, Nielsen, Roth, Stone, Vidak

NO VOTE RECORDED: Hertzberg, Hueso, Jackson, Mendoza, Runner, Wolk

SUBJECT:

SOURCE: Author

DIGEST: This bill repeals the current enhancement for specified drug commerce crimes under which a defendant receives an additional term of three years for each prior conviction of any one of the listed crimes.

ANALYSIS:

Existing law:

1. Classifies controlled substances in five schedules according to their medical utility and potential for abuse.  Schedule I controlled substances are deemed to have no accepted medical uses and cannot be prescribed. Examples of drugs in the California Schedule include the following:

• Cocaine, heroin and marijuana are Schedule I drugs.
• Methamphetamine, oxycodone and codeine are Schedule II drugs.
• Barbiturates (tranquilizers, anabolic steroids and specified narcotic, pain medications are Schedule III drugs.
• Benzodiazepines (Valium) and phentermine (diet drug) are Schedule IV drugs.
• Specified narcotic pain medications with active non-narcotic active ingredients are Schedule V drugs. (Health & Saf. Code §§ 11054-11058.) 

1. Provides penalties for possession, possession for purposes of sale, and manufacturing of controlled substances. Sentences for drug offenses are typically subject to Penal Code Section 1170 (h). Convicted defendants serve felony sentences in county jails, unless disqualified by prior serious felony convictions or by being a registered sex offender. (Health & Saf. Code §§ 11350-11401.)
2. Includes a myriad of enhancements for controlled substance crimes. These include enhancements for drug crimes that involve or affect minors, for the weight or volume of the substance and prior drug-crime convictions. (See. Health & Saf. Code §§ 11370.2, 11370.4, 1353.4, 11353.6, subd. (b), and 11379.7.)
3. Provides that where a person is convicted in a current case of one of a list of specified drug commerce crimes, and the person has been previously convicted of any of these crimes, he or she shall receive a sentence enhancement of three years for each prior conviction, to be served in jail unless the defendant is disqualified from a jail term by prior serious felony convictions or sex offender registration, or another statute requires a prison term. (Health & Saf. § 11370.2.) The enhancement covers a conviction for conspiracy to commit any of the listed crimes. The qualifying offenses are as follows. All statutory references in the list are to the Health and Safety Code:

• Possession for sale of cocaine, heroin, specified opiates or other specified drugs - § 11350
• Possession for sale of cocaine base - § 11351.5
• Possession for sale of cocaine, heroin, specified opiates and other specified drugs - § 11351
• Sale, distribution or transportation of cocaine, cocaine base heroin, specified opiates - § 11352
• Possession for sale of methamphetamine or specified other drugs - § 11378
• Sale, distribution or transportation of methamphetamine or specified other drugs - § 11379
• Possession for sale of PCP - § 11378.5
• Sale, distribution or transportation of PCP - § 11379.5
• Manufacturing any controlled substance through chemical extraction or synthesis - § 11379.6
• Manufacturing any controlled substance through chemical extraction or synthesis, with an enhancement based on the weight of the substance containing the drug - § 11379.8
• Using a minor in the commission of specified drug offenses - § 11380
• Possession of precursor chemicals with intent to manufacture PCP - § 11383

This bill repeals the three-year sentence enhancement for each of a defendant’s prior convictions for one of a list of drug commerce crimes, where the defendant is convicted in the current case of another such crime.

Background

The enhancement for prior drug crime convictions was enacted through AB 2320 (Condit, Chapter 1398, Statutes of 1985). The bill included legislative intent “to punish more severely those persons who are in the regular business of trafficking in, or production of, narcotics and those persons who deal in large quantities of narcotics as opposed to individuals who have a less serious, occasional, or relatively minor role in this activity.”

The bill - called “The Dealer Statute” - was sponsored by the Los Angeles District Attorney and also included enhancements based on the weight of the drug involved in specified drug commerce crime. The sponsor explained that the bill was modeled on particularly harsh federal drug crime laws. The sponsor argued that the bill was necessary to eliminate an incentive for persons “to traffic [in drugs] in California where sentences are significantly lighter than in federal law.” The federal laws to which the sponsor referred were those enacted in the expansion of the so-called war against drugs during the Reagan administration. These laws included reduced judicial discretion through mandatory minimum sentences. The current administration has begun to pull back on some of the harshest policies and Congress has passed some sentence reductions, most notably reducing the disparity between cocaine powder crimes and cocaine base crimes.

Extensive research has found that raising penalties generally do not deter potential perpetrators from committing crimes. The most effective deterrent is certainty of being arrested. In the context of drug commerce, researchers noted that drug sellers who were prosecuted and incarcerated were quickly replaced in the community. It could thus be argued that enhancements such as those repealed by this bill could increase the number of persons involved in drug crimes. (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.) 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.)

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

SUPPORT: (Verified 4/6/16)

A New Way of Life

American Civil Liberties Union of California

American Friends Service Committee

Arts for Incarcerated Youth Network

Bay Area Black Worker Center

California Attorneys for Criminal Justice

California Coalition for Women Prisoners

California Partnership

California Public Defenders Association

Californians for Safety and Justice

Center for Health Justice

Center for Living and Learning

Center on Juvenile and Criminal Justice

Centro Legal de la Raza

Communities United for Restorative Youth Justice

Contra Costa County Public Defender’s Office

Courage Campaign

Critical Resistance Los Angeles

Fathers & Families of San Joaquin

Forward Together

Friends Committee on Legislation

Harm Reduction Services

HealthRIGHT360

Healthy Communities Inc.

HIV Education and Prevention Project of Alameda County

Human Rights of the Incarcerated Coalition

Islamic Shura Council of Southern California

Justice Now

Justice Policy Institute

Law Enforcement Against Prohibition

Lawyers’ Committee for Civil Rights, S.F

Legal Services for Prisoners with Children

Los Angeles Community Action Network

Monterey Bay Central Labor Council, AFL-CIO

Mortgage Personnel Services

National Association of Social Workers

National Center for Youth Law

Oakland Rising

Prison Activist Resource Center

Prison Law Office

Prison Policy Initiative

Project Inform RYSE

Reentry Success Center

San Diego Organizing Project

San Francisco Public Defender

Silicon Valley Debug

Transgender, Gender-variant, Intersex Justice Project

United Against Violence

W. Haywood Burns Institute

Women’s Council of the California Chapter, National Association of Social Workers

Women’s Foundation of California

Young Women’s Freedom Center

2 individuals

OPPOSITION: (Verified 4/6/16)

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 District Attorneys Association

California Narcotic Officers Association

California Police Chiefs Association

California State Sheriffs’ Association

International Faith Based Coalition

Los Angeles County Professional Peace Officers Association

Los Angeles Police Protective League

Peace Officers Research Association of California

Riverside Sheriffs’ Association

ARGUMENTS IN SUPPORT: The author argues, “Sentence enhancements based on prior convictions target the poorest and most marginalized people in our communities — those with substance use and mental health needs, and those who … have struggled to integrate into free society. Counties… are building new jails to imprison more people with long sentences, funneling money away from community-based programs and services. People with drug issues, particularly those in low-income communities of color, are increasingly left with the choice of seeking help in a jail or not seeking help at all.”

ARGUMENTS IN OPPOSITION: The California Police Chiefs Association argues that it is wrong to treat repeat drug offenders the same as a person convicted of his first offense. The Association notes the current opioid epidemic and states, “Clearly there is an enhanced level of seriousness posed to [the public] by career opioid traffickers and the enhanced sentence…under current law should be retained.”

Prepared by:

4/27/16 15:57:16

**** END ****

 THIRD READING  

Bill No: SB 966

Author:

:

Vote:

SENATE PUBLIC SAFETY COMMITTEE: 4-3, 4/5/16

AYES: Hancock, Leno, Liu, Monning

NOES: Anderson, Glazer, Stone

SUBJECT:

SOURCE: Author

DIGEST: This bill repeals the current enhancement for specified drug commerce crimes under which a defendant receives an additional term of three years for each prior conviction of any one of the listed crimes.

ANALYSIS:

Existing law:

1. Classifies controlled substances in five schedules according to their medical utility and potential for abuse.  Schedule I controlled substances are deemed to have no accepted medical uses and cannot be prescribed. Examples of drugs in the California Schedule include the following:

• Cocaine, heroin and marijuana are Schedule I drugs.
• Methamphetamine, oxycodone and codeine are Schedule II drugs.
• Barbiturates (tranquilizers, anabolic steroids and specified narcotic, pain medications are Schedule III drugs.
• Benzodiazepines (Valium) and phentermine (diet drug) are Schedule IV drugs.
• Specified narcotic pain medications with active non-narcotic active ingredients are Schedule V drugs. (Health & Saf. Code §§ 11054-11058.) 

1. Provides penalties for possession, possession for purposes of sale, and manufacturing of controlled substances. Sentences for drug offenses are typically subject to Penal Code Section 1170 (h). Convicted defendants serve felony sentences in county jails, unless disqualified by prior serious felony convictions or by being a registered sex offender. (Health & Saf. Code §§ 11350-11401.)
2. Includes a myriad of enhancements for controlled substance crimes. These include enhancements for drug crimes that involve or affect minors, for the weight or volume of the substance and prior drug-crime convictions. (See. Health & Saf. Code §§ 11370.2, 11370.4, 1353.4, 11353.6, subd. (b), and 11379.7.)
3. Provides that where a person is convicted in a current case of one of a list of specified drug commerce crimes, and the person has been previously convicted of any of these crimes, he or she shall receive a sentence enhancement of three years for each prior conviction, to be served in jail unless the defendant is disqualified from a jail term by prior serious felony convictions or sex offender registration, or another statute requires a prison term. (Health & Saf. § 11370.2.) The enhancement covers a conviction for conspiracy to commit any of the listed crimes. The qualifying offenses are as follows. All statutory references in the list are to the Health and Safety Code:

• Possession for sale of cocaine, heroin, specified opiates or other specified drugs - § 11350
• Possession for sale of cocaine base - § 11351.5
• Possession for sale of cocaine, heroin, specified opiates and other specified drugs - § 11351
• Sale, distribution or transportation of cocaine, cocaine base heroin, specified opiates - § 11352
• Possession for sale of methamphetamine or specified other drugs - § 11378
• Sale, distribution or transportation of methamphetamine or specified other drugs - § 11379
• Possession for sale of PCP - § 11378.5
• Sale, distribution or transportation of PCP - § 11379.5
• Manufacturing any controlled substance through chemical extraction or synthesis - § 11379.6
• Manufacturing any controlled substance through chemical extraction or synthesis, with an enhancement based on the weight of the substance containing the drug - § 11379.8
• Using a minor in the commission of specified drug offenses - § 11380
• Possession of precursor chemicals with intent to manufacture PCP - § 11383

This bill repeals the three-year sentence enhancement for each of a defendant’s prior convictions for one of a list of drug commerce crimes, where the defendant is convicted in the current case of another such crime.

Background

The enhancement for prior drug crime convictions was enacted through AB 2320 (Condit, Chapter 1398, Statutes of 1985). The bill included legislative intent “to punish more severely those persons who are in the regular business of trafficking in, or production of, narcotics and those persons who deal in large quantities of narcotics as opposed to individuals who have a less serious, occasional, or relatively minor role in this activity.”

The bill - called “The Dealer Statute” - was sponsored by the Los Angeles District Attorney and also included enhancements based on the weight of the drug involved in specified drug commerce crime. The sponsor explained that the bill was modeled on particularly harsh federal drug crime laws. The sponsor argued that the bill was necessary to eliminate an incentive for persons “to traffic [in drugs] in California where sentences are significantly lighter than in federal law.” The federal laws to which the sponsor referred were those enacted in the expansion of the so-called war against drugs during the Reagan administration. These laws included reduced judicial discretion through mandatory minimum sentences. The current administration has begun to pull back on some of the harshest policies and Congress has passed some sentence reductions, most notably reducing the disparity between cocaine powder crimes and cocaine base crimes.

Extensive research has found that raising penalties generally do not deter potential perpetrators from committing crimes. The most effective deterrent is certainty of being arrested. In the context of drug commerce, researchers noted that drug sellers who were prosecuted and incarcerated were quickly replaced in the community. It could thus be argued that enhancements such as those repealed by this bill could increase the number of persons involved in drug crimes. (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.) 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.)

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

SUPPORT: (Verified 4/6/16)

A New Way of Life

American Civil Liberties Union of California

American Friends Service Committee

Arts for Incarcerated Youth Network

Bay Area Black Worker Center

California Attorneys for Criminal Justice

California Coalition for Women Prisoners

California Partnership

California Public Defenders Association

Californians for Safety and Justice

Center for Health Justice

Center for Living and Learning

Center on Juvenile and Criminal Justice

Centro Legal de la Raza

Communities United for Restorative Youth Justice

Contra Costa County Public Defender’s Office

Courage Campaign

Critical Resistance Los Angeles

Fathers & Families of San Joaquin

Forward Together

Friends Committee on Legislation

Harm Reduction Services

HealthRIGHT360

Healthy Communities Inc.

HIV Education and Prevention Project of Alameda County

Human Rights of the Incarcerated Coalition

Islamic Shura Council of Southern California

Justice Now

Justice Policy Institute

Law Enforcement Against Prohibition

Lawyers’ Committee for Civil Rights, S.F

Legal Services for Prisoners with Children

Los Angeles Community Action Network

Monterey Bay Central Labor Council, AFL-CIO

Mortgage Personnel Services

National Association of Social Workers

National Center for Youth Law

Oakland Rising

Prison Activist Resource Center

Prison Law Office

Prison Policy Initiative

Project Inform RYSE

Reentry Success Center

San Diego Organizing Project

San Francisco Public Defender

Silicon Valley Debug

Transgender, Gender-variant, Intersex Justice Project

United Against Violence

W. Haywood Burns Institute

Women’s Council of the California Chapter, National Association of Social Workers

Women’s Foundation of California

Young Women’s Freedom Center

2 individuals

OPPOSITION: (Verified 4/6/16)

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 District Attorneys Association

California Narcotic Officers Association

California Police Chiefs Association

California State Sheriffs’ Association

International Faith Based Coalition

Los Angeles County Professional Peace Officers Association

Los Angeles Police Protective League

Peace Officers Research Association of California

Riverside Sheriffs’ Association

ARGUMENTS IN SUPPORT: The author argues, “Sentence enhancements based on prior convictions target the poorest and most marginalized people in our communities — those with substance use and mental health needs, and those who … have struggled to integrate into free society. Counties… are building new jails to imprison more people with long sentences, funneling money away from community-based programs and services. People with drug issues, particularly those in low-income communities of color, are increasingly left with the choice of seeking help in a jail or not seeking help at all.”

ARGUMENTS IN OPPOSITION: The California Police Chiefs Association argues that it is wrong to treat repeat drug offenders the same as a person convicted of his first offense. The Association notes the current opioid epidemic and states, “Clearly there is an enhanced level of seriousness posed to [the public] by career opioid traffickers and the enhanced sentence…under current law should be retained.”

Prepared by:

4/6/16 14:48:52

**** END ****

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Loni Hancock, Chair

2015 - 2016 Regular

Bill No: SB 966 Hearing Date: April 5, 2016

Subject: Controlled Substances: Sentence Enhancements: Prior Convictions

HISTORY

Source: Californians United for a Responsible Budget; Drug Policy Alliance; Ella Baker Center for Human Rights

Prior Legislation: AB 2320 (Condit) – Ch. 1398, Stats. of 1985

Support: American Civil Liberties Union of California; American Friends Service Committee; Arts for Incarcerated Youth Network; Bay Area Black Worker Center; California Attorneys for Criminal Justice; California Coalition for Women Prisoners; California Partnership; California Public Defenders Association; Californians for Safety and Justice; Center for Health Justice; Center for Living and Learning; Center on Juvenile and Criminal Justice; Centro Legal de la Raza; Communities United for Restorative Youth Justice; Courage Campaign; Critical Resistance Los Angeles; Fathers & Families of San Joaquin; Forward Together; Friends Committee on Legislation; HealthRIGHT360; Healthy Communities Inc.; HIV Education and Prevention Project of Alameda County; Human Rights of the Incarcerated Coalition; Islamic Shura Council of Southern California; Justice Now; Justice Policy Institute; Law Enforcement Against Prohibition; Lawyers’ Committee for Civil Rights, S.F.; Legal Services for Prisoners with Children; Los Angeles Community Action Network; Monterey Bay Central Labor Council, AFL-CIO; Mortgage Personnel Services; National Center for Youth Law; A New Way of Life; Oakland Rising; Prison Activist Resource Center; Prison Law Office; Prison Policy Initiative; Project Inform; RYSE; San Diego Organizing Project; Silicon Valley Debug; Transgender, Gender-variant, Intersex Justice Project; W. Haywood Burns Institute; Women’s Council of the California Chapter of the National Association of Social Workers; Women’s Foundation of California; Young Women’s Freedom Center; 2 individuals

Opposition: 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 Narcotic Officers Association; California District Attorneys Association; California Police Chiefs Association; Los Angeles County Professional Peace Officers Association; Los Angeles Police Protective League; Peace Officers Research Association of California; Riverside Sheriffs Association; International Faith Based Coalition; California State Sheriffs’ Association

PURPOSE

The purpose of this bill is to repeal the current enhancement for specified drug commerce crimes under which a defendant receives an additional term of three years for each prior conviction of any one the listed crimes.

Existing law classifies controlled substances in five schedules according to their medical utility and potential for abuse.  Schedule I controlled substances are deemed to have no accepted medical uses and cannot be prescribed. Examples of drugs in the California Schedule include the following:

• Cocaine, heroin and marijuana are Schedule I drugs.
• Methamphetamine, oxycodone and codeine are Schedule II drugs.
• Barbiturates (tranquilizers, anabolic steroids and specified narcotic, pain medications are Schedule III drugs.
• Benzodiazepines (Valium) and phentermine (diet drug) are Schedule IV drugs.
• Specified narcotic pain medications with active non-narcotic active ingredients are Schedule V drugs. (Health & Saf. Code §§ 11054-11058.) 

Existing law provides penalties for possession, possession for purposes of sale, and manufacturing of controlled substances. Sentences for drug offenses are typically subject to Penal Code Section 1170 (h). Convicted defendants serve felony sentences in county jails, unless disqualified by prior serious felony convictions or by being a registered sex offender. (Health & Saf. Code §§ 11350-11401.)

Existing law includes a myriad of enhancements for controlled substance crimes. These include enhancements for drug crimes that involve of affect minors, for the weight or volume of the substance and prior drug-crime convictions. (See. Health & Saf. Code §§ 11370.2, 11370.4, 1353.4, 11353.6, subd. (b), and 11379.7.)

Existing law provides that where a person is convicted in a current case of one of a list of specified drug commerce crimes, and the person has been previously convicted of any of these crimes, he or she shall receive a sentence enhancement of three years for each prior conviction, to be served in jail unless the defendant is disqualified from a jail term by prior serious felony convictions or sex offender registration, or another statute requires a prison term. (Health & Saf. § 11370.2.) The enhancement covers a conviction for conspiracy to commit any of the listed crimes. The qualifying offenses are as follows. All statutory references in the list are to the Health and Safety Code:

• Possession for sale of cocaine, heroin, specified opiates or other specified drugs - § 11350
• Possession for sale of cocaine base - § 11351.5
• Possession for sale of cocaine, heroin, specified opiates and other specified drugs - § 11351
• Sale, distribution or transportation of cocaine, cocaine base heroin, specified opiates - § 11352
• Possession for sale of methamphetamine or specified other drugs - § 11378
• Sale, distribution or transportation of methamphetamine or specified other drugs - § 11379
• Possession for sale of PCP - § 11378.5
• Sale, distribution or transportation of PCP - § 11379.5
• Manufacturing any controlled substance through chemical extraction or synthesis - § 11379.6
• Manufacturing any controlled substance through chemical extraction or synthesis, with an enhancement based on the weight of the substance containing the drug - § 11379.8
• Using a minor in the commission of specified drug offenses - § 11380
• Possession of precursor chemicals with intent to manufacture PCP - § 11383

This bill repeals the three-year sentence enhancement for each of a defendant’s prior convictions for one of a list of drug commerce crimes, where the defendant is convicted in the current case of another such crime.

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 966 - the RISE Act will begin undoing the damage of the failed War on Drugs. Long sentences that were central to the drug war strategy utterly failed to reduce drug availability or the number of people harmed in the illicit drug market. Controlled substances are now cheaper and more widely available than ever before, despite a massive investment of tax revenue and mass incarceration that has devastated low-income communities of color.

The RISE Act will free up taxpayer dollars for investment in community-based treatment programs instead of costly jail expansion. Since 2007, California has spent $2.2 billion on county jail construction – not including the costs borne by the counties for construction and increased staffing, or the state’s debt service. Sheriffs have argued for expansion by pointing to their growing jail populations, particularly people with long sentences and with mental health and substance use needs. By reducing sentences for people with prior drug convictions, SB 966 will diminish this rationale for jail expansion, allowing state and county funds to be invested in programs and services that truly improve public safety, including community-based mental health and substance use treatment, job programs, and affordable housing.

The RISE Act will reduce racial disparities in the criminal justice system. Enhancements based on prior drug convictions exacerbate racial disparities. Although rates of drug use and selling are comparable across racial lines, people of color are far more likely to be stopped, arrested and incarcerated for drug law violations than are whites. Prosecutors are twice as likely to seek an enhanced sentence for a black defendant as for a white defendant charged with the same offense.

The RISE Act would reduce unjust prosecutorial power. Prosecutors use enhancements as leverage to extract guilty pleas. They have complete discretion as to what charges they bring, including enhancements based on prior drug convictions. Prosecutors can coerce people into pleading guilty by offering to reduce the charges they would face at trial. Human Rights Watch observes that “plea agreements have …become an offer drug defendants cannot afford to refuse.”

The RISE Act would enhance community safety. Longer sentences for drug offenses do not reduce recidivism, nor do they deter crime – most people are unaware of penalties or think they will be not be caught. Incarceration does not reduce crime by incapacitating people who sell drugs at the street level. Research shows that people selling retail-level drugs are quickly replaced as long as the demand for a drug remains high. Incarceration can reduce public safety by destabilizing families and communities. Released inmates face extreme barriers in finding jobs and housing. Family members of incarcerated people also struggle with overwhelming debt from court costs, visitation and telephone fees, and diminished family revenue.

Sentence enhancements based on prior convictions target the poorest and most marginalized people in our communities — those with substance use and mental health needs, and those who, after prior contact with police or imprisonment, have struggled to integrate into free society.

The RISE Act is urgently needed. Counties around the state are building new jails to imprison more people with long sentences, funneling money away from community-based programs and services. People with drug issues, particularly those in low-income communities of color, are increasingly left with the choice of seeking help in a jail or not seeking help at all.

2. History of the Enhancement for Prior Drug Crimes

The enhancement for prior drug crime convictions was enacted through AB 2320 (Condit), Chapter 1398, Statutes of 1985. The bill included un-codified legislative intent “to punish more severely those persons who are in the regular business of trafficking in, or production of, narcotics and those persons who deal in large quantities of narcotics as opposed to individuals who have a less serious, occasional, or relatively minor role in this activity.”

The bill - called “The Dealer Statute” - was sponsored by the Los Angeles District Attorney and also included enhancements based on the weight of the drug involved in specified drug commerce crime. The weight enhancement is found in Health and Safety Code Section 11370.4. The Senate Judiciary Committee analysis of the bill set out the sponsor’s explanation that the bill was modeled on particularly harsh federal drug crime laws. The sponsor argued that the bill was necessary to eliminate an incentive for persons “to traffic [in drugs] in California where sentences are significantly lighter than in federal law.”

The federal laws to which the sponsor referred were those enacted in the expansion of the so-called war against drugs during the Reagan administration. President Reagan announced his initiative^[1] in October of 1982, at a time when Columbian cocaine “cartels” were becoming powerful. ^[2] Nancy Reagan announced her “Just Say No” campaign in July of 1984. These federal laws included reduced judicial discretion, including through mandatory minimum sentences. The current administration has begun to pull back on some of the harshest policies and Congress has passed some sentence reductions, most notably reducing the disparity between cocaine powder crimes and cocaine base crimes.

3. Research on Sentences and Sentences Increases as Deterrents 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.^[3]

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.^[4]

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.”^[5]

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.

DO SEVERE SENTENCE ENHANCEMENTS, SUCH THE ENHANCEMENT FOR A PRIOR DRUG CRIMES THAT WOULD BE REPEALED BY THIS BILL, DISCOURAGE PERSONS FROM DRUG COMMERCE RECIDIVISM?

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1. http://www.presidency.ucsb.edu/ws/?pid=43085 ↑

2. http://www.npr.org/templates/story/story.php?storyId=9252490 ↑

3. 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.) ↑

4. 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,) ↑

5. Id. at 132-133. ↑