Existing law prohibits granting probation or suspending a sentence for persons convicted of specified crimes relating to controlled substances, including possessing or agreeing to sell or transport opiates or opium derivatives, possessing or transporting cannabis, planting or cultivating peyote, and various crimes relating to forging or altering prescriptions, among other crimes, if the person has previously been convicted of any one of specified felony offenses relating to controlled substances. Existing law also prohibits granting probation or suspending a sentence for persons convicted of specified crimes relating to controlled substances, including possessing for sale or selling 14.25 grams or more of a substance containing heroin and possessing for sale 14.25 grams or more of any salt or solution of phencyclidine or its analogs, among other crimes.

This bill would delete various crimes relating to controlled substances, including, but not limited to, the crimes described above, from those prohibitions against granting probation or a suspended sentence. By making additional persons eligible for probation, 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, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Existing law prohibits granting probation or suspending a sentence for persons convicted of specified crimes relating to controlled substances, including possessing or agreeing to sell or transport opiates or opium derivatives, possessing or transporting cannabis, planting or cultivating peyote, and various crimes relating to forging or altering prescriptions, among other crimes, if the person has previously been convicted of any one of specified felony offenses relating to controlled substances. Existing law also prohibits granting probation or suspending a sentence for persons convicted of specified crimes relating to controlled substances, including possessing for sale or selling 14.25 grams or more of a substance containing heroin and possessing for sale 14.25 grams or more of any salt or solution of phencyclidine or its analogs, among other crimes.

This bill would delete various crimes relating to controlled substances, including, but not limited to, the crimes described above, from those prohibitions against granting probation or a suspended sentence. By making additional persons eligible for probation, 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, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

SENATE THIRD READING

STR Bill Id:

Author:(Skinner)

As Amended Ver:June 21, 2018

Majority vote

SENATE VOTE: 28-10

SUMMARY: Authorizes the court to grant probation for specified drug offenses which are currently either ineligible or presumptively ineligible for probation, except in cases where a minor is used as an agent, in which case probation is prohibited.

EXISTING LAW:

1. Defines ''probation'' as ''the suspension of the imposition or execution of a sentence and the order of conditional and revocable release in the community under the supervision of a probation officer.''
2. Prohibits the granting of probation to any person who is convicted of violating the following drug crimes:
   1. Possession for sale of 14.25 grams or more of a substance containing heroin;
   2. Sale of, or offering to sell, 14.25 grams or more of a substance containing of heroin;
   3. Possession for sale, sale, or offering to sell heroin, with one or more prior convictions for those offenses;
   4. Possession for sale of 14.25 grams or more of any salt or solution of phencyclidine (PCP), or any of its analogs or precurors;
   5. Transporting for sale, importing for sale, administering, or offering to transport for sale, import for sale, or administer, or attempt to import for sale or transport for sale, PCP or any of its analogs or precursors;
   6. Sale of, or offering to sell, PCP or any of its analogs or precursors;
   7. Manufacture of PCP or any of its analogs or precursors, as specified;
   8. Using, soliciting, inducing, encouraging, or intimidating a minor to act as an agent to manufacture or sell any specified controlled substance;
   9. Using a minor as an agent or who solicits, induces, encourages, or intimidates a minor with the intent that the minor be in possession of PCP for sale, sells, distributes, or transports PCP, or manufactures PCP or any of its analogs or precursors;
   10. Possession of specified substances, with intent to manufacture PCP or any of its analogs; and,
   11. Possession for sale, sale, or offering to sell cocaine, cocaine base, or methamphetamine, with one or more prior convictions for those offenses.
3. Requires the existence of any fact which makes the defendant ineligible for probation to be alleged in the charging document, and either admitted by the defendant or found to be true by the trier of fact.
4. Restricts the granting of probation, except in an unusual case where the interests of justice would be served, when a defendant is convicted of the following drug crimes:
   1. Possession for sale or sale of a substance containing 28.5 grams or more of cocaine or cocaine base;
   2. Possession for sale or sale of a substance containing 28.5 grams or more of methamphetamine;
   3. Manufacture of specified controlled substances, except PCP;
   4. Using, soliciting, inducing, encouraging, or intimidating a minor to manufacture, compound, or sell heroin, cocaine base, cocaine, or methamphetamine; and,
   5. Manufacture or sale of methamphetamine, with one or more specified prior convictions involving methamphetamine;
5. Requires the existence of any fact which makes the defendant presumptively ineligible for probation to be alleged in the charging document, and either admitted by the defendant or found to be true by the trier of fact.

FISCAL EFFECT: According to the Assembly Appropriations Committee:

1. Unknown potentially reimbursable mandate, in the millions of dollars, on county probation departments. Under Proposition 30 (2012) counties are not obligated to provide an increased level of service unless funding is provided by the state.
2. General Fund costs to the Department of Justice of $56,000 in 2018-19, $135,000 in 2019-20, and $94,000 in 2020-21 and ongoing to handle an estimate increase in litigation.
3. Unknown potentially significant savings to the California Department of Corrections and Rehabilitation to the extent offenders receive a sentence of probation and are not sent to state prison.

COMMENTS: According to the author, ''California law currently prohibits judges from factoring the specifics of the case before them when individuals are charged with certain nonviolent drug crimes. Instead the judge must apply a mandatory sentence, rather than, for example, considering probation or other alternatives.

''Mandatory sentences force judges to imprison individuals who in some cases might be better treated and supervised in the community. Drug crimes often are a result of a person's addiction. Requiring a mandatory sentence to such individuals overcrowds county jails, strains state and local budgets, and has failed to reduce drug use, crime, and harm.

''Judges hands are not tied in this manner when sentencing for most violent crimes, including domestic violence and offenses involving deadly weapons. Judges should be allowed a comparable level of discretion when deciding nonviolent drug cases.

''Overwhelming evidence shows that mandatory sentences for drug crimes not only do not improve public safety but exacerbate existing racial disparities in our criminal justice system and disproportionately impact those suffering from mental illness.

''Restoring a modest level of judicial discretion, SB 1025 addresses sentencing inflation and strengthens the state's ability to reinvest in drug prevention and mental health treatment.''

Please see the policy committee analysis for a full discussion of this bill.

Analysis Prepared by: Sandy Uribe / PUB. S. / (916) 319-3744 FN: 0004092

Date of Hearing: August 8, 2018

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez Fletcher, Chair

SBPCA Bill Id:SB 1025

Author:(Skinner) – As Amended Ver:June 21, 2018

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

SUMMARY:

This bill authorizes a court to grant probation for specified drug offenses which are currently either ineligible or presumptively ineligible for probation. This bill does not authorize a court to grant probation in cases where a minor is used as an agent.

FISCAL EFFECT:

1. Unknown potentially reimbursable mandate, in the millions of dollars, on county probation departments. Under Proposition 30 (2012) counties are not obligated to provide an increased level of service unless funding is provided by the state.
2. GF costs to the Department of Justice of $56,000 in 2018-19, $135,000 in 2019-20, and $94,000 in 2020-21 and ongoing to handle an estimate increase in litigation.
3. Unknown potentially significant savings to the California Department of Corrections and Rehabilitation to the extent offenders receive a sentence of probation and are not sent to state prison.

COMMENTS:

1. Background. Probation is the suspension of the imposition or the execution of a criminal sentence and the order of conditional release to the community. As a general rule, most felony and misdemeanor cases are eligible for probation. However, a number of statutes prohibit the granting of probation for certain crimes or offenders.
2. Purpose. This bill would allow a court to grant probation for controlled substance offenses that are currently either ineligible or presumptively ineligible for probation, except in those cases in which a person uses, solicits, induces, encourages, or intimidates a minor to act as an agent to manufacture or sell controlled substances. According to the author:

Restoring a modest level of judicial discretion, SB 1025 addresses sentencing inflation and strengthens the state's ability to reinvest in drug prevention and mental health treatment.

Analysis Prepared by: Jessica Peters / APPR. / (916) 319-2081

Date of Hearing: June 19, 2018

Counsel: Sandy Uribe

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

SBPCA Bill Id:SB 1025

Author:(Skinner) – As Introduced Ver:February 7, 2018

As Proposed to be Amended in Committee

SUMMARY: Authorizes the court to grant probation for specified drug offenses which are currently either ineligible or presumptively ineligible for probation, except in cases where a minor is used as an agent, in which case probation is prohibited.

EXISTING LAW:

1. Defines “probation” as “the suspension of the imposition or execution of a sentence and the order of conditional and revocable release in the community under the supervision of a probation officer.” (Pen. Code, § 1203, subd. (a).)
   
2. Prohibits the granting of probation to any person who is convicted of violating the following drug crimes:
   
   1. Possession for sale of 14.25 grams or more of a substance containing heroin;
   2. Sale of, or offering to sell, 14.25 grams or more of a substance containing of heroin;
      
   3. Possession for sale, sale, or offering to sell heroin, with one or more prior convictions for those offenses;
      
   4. Possession for sale of 14.25 grams or more of any salt or solution of phencyclidine (PCP), or any of its analogs or precurors;
      
   5. Transporting for sale, importing for sale, administering, or offering to transport for sale, import for sale, or administer, or attempt to import for sale or transport for sale, PCP or any of its analogs or precursors;
      
   6. Sale of, or offering to sell, PCP or any of its analogs or precursors;
      
   7. Manufacture of PCP or any of its analogs or precursors, as specified;
      
   8. Using, soliciting, inducing, encouraging, or intimidating a minor to act as an agent to manufacture or sell any specified controlled substance;
   9. Using a minor as an agent or who solicits, induces, encourages, or intimidates a minor with the intent that the minor be in possession of PCP for sale, sells, distributes, or transports PCP, or manufactures PCP or any of its analogs or precursors;
   10. Possession of specified substances, with intent to manufacture PCP or any of its analogs; and,
   11. Possession for sale, sale, or offering to sell cocaine, cocaine base, or methamphetamine, with one or more prior convictions for those offenses. (Pen. Code, § 1203.07. subd. (a).)
       
3. Requires the existence of any fact which makes the defendant ineligible for probation to be alleged in the charging document, and either admitted by the defendant or found to be true by the trier of fact. (Pen. Code, § 1203.07. subd. (b).)
   
4. Restricts the granting of probation, except in an unusual case where the interests of justice would be served, when a defendant is convicted of the following drug crimes:
   
   1. Possession for sale or sale of a substance containing 28.5 grams or more of cocaine or cocaine base;
      
   2. Possession for sale or sale of a substance containing 28.5 grams or more of methamphetamine;
      
   3. Manufacture of specified controlled substances, except PCP;
      
   4. Using, soliciting, inducing, encouraging, or intimidating a minor to manufacture, compound, or sell heroin, cocaine base, cocaine, or methamphetamine; and,
      
   5. Manufacture or sale of methamphetamine, with one or more specified prior convictions involving methamphetamine; (Pen. Code, § 1203.073, subds. (a) & (b).)
      
5. Requires the existence of any fact which makes the defendant presumptively ineligible for probation to be alleged in the charging document, and either admitted by the defendant or found to be true by the trier of fact. (Pen. Code, § 1203.073. subd. (d).)

FISCAL EFFECT: Unknown.

COMMENTS:

1. Author's Statement: According to the author, “California law currently prohibits judges from factoring the specifics of the case before them when individuals are charged with certain nonviolent drug crimes. Instead the judge must apply a mandatory sentence, rather than, for example, considering probation or other alternatives.
   
   “Mandatory sentences force judges to imprison individuals who in some cases might be better treated and supervised in the community. Drug crimes often are a result of a person's addiction. Requiring a mandatory sentence to such individuals overcrowds county jails, strains state and local budgets, and has failed to reduce drug use, crime, and harm.
   
   “Judges hands are not tied in this manner when sentencing for most violent crimes, including domestic violence and offenses involving deadly weapons. Judges should be allowed a comparable level of discretion when deciding nonviolent drug cases.
   
   “Overwhelming evidence shows that mandatory sentences for drug crimes not only do not improve public safety but exacerbate existing racial disparities in our criminal justice system and disproportionately impact those suffering from mental illness.
   
   “Restoring a modest level of judicial discretion, SB 1025 addresses sentencing inflation and strengthens the state's ability to reinvest in drug prevention and mental health treatment.”
   
2. Probation Eligibility: Probation is the suspension of the imposition or the execution of a criminal sentence and the order of conditional release to the community. (Pen. Code, § 1203, subd. (a).)
   

As a general rule, most felony and misdemeanor cases are eligible for probation. However, a number of statutes prohibit the granting of probation for certain crimes or offenders. (See e.g., Pen. Code, §§ 1203.06 [certain violent felonies]; 1203.065 [certain sex offenses]; 1203.07 [certain drug offenses]; 1203.075 [specified crimes when defendant inflicts great bodily injury].) The existence of the fact which makes the defendant ineligible for probation must be alleged in the accusatory pleading and either admitted by the defendant in open court, or found to be true by the jury or judge. (People v. Lo Cicero (1969) 71 Cal.2d 1186, 1192-1193.)

There are other circumstances and enumerated offenses which are presumptively ineligible for probation and for which probation may be granted only in unusual circumstances where the interests of justice would best be served if the person is granted probation. Some examples include use of a weapon during the commission of a crime (Pen. Code, 1203, subd. (e)(2)); infliction of great bodily injury during the commission of the offense crime (Pen. Code, 1203, subd. (e)(3)); defendants previously convicted of two or more felonies (Pen. Code, 1203, subd. (e)(4)); theft cases involving over $100,000 (Pen. Code, § 1203.045); using, soliciting, or encouraging a minor to commit a felony (Pen. Code, § 1203.046); and certain drug offenses (Pen. Code, § 1203.073). In such instances, the defendant bears the burden of demonstrating that his or her case is the unusual case in which justice would be served by a granting of probation.

The Rules of Court list certain factors that may indicate the existence of unusual circumstances warranting probation eligibility for such offenses. Specifically, the court may consider whether the factor giving rise to the probation limitation is less serious than typically present coupled with the defendant’s lack of similar criminal history. (Cal. Rules of Court, rule 4.413(c)(1)(A).) The court may also consider whether the current offense is less serious than a prior conviction which is the basis for the probation limitation, coupled with the defendant remaining free from incarceration for a substantial time before the present offense. (Cal. Rules of Court, rule 4.413(c)(1)(B).) Finally, the court may also consider factors not amounting to a defense, but reducing culpability, including: (1) that the defendant participated in the crime under provocation, coercion or duress and does not have a recent record involving crimes of violence; (2) that the defendant committed the crime because of a mental condition and there is a likelihood that he or she would respond to treatment that would be required as a condition of probation. (Cal. Rules of Court, rule 4.413(c)(2).) The trial court may, but is not required to, find the case unusual if the relevant criteria is met. (People v. Cattaneo (1990) 217 Cal.App.3d 1577, 1587.) In this respect, the court has broad discretion and its decision will only be overturned if there was an abuse of discretion. (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.)^[1]

This bill would allow a court to grant probation for controlled substance offenses that are currently either ineligible or presumptively-ineligible for probation, except in those cases in which a person uses, solicits, induces, encourages, or intimidates a minor to act as an agent to manufacture or sell controlled substances.

1. Argument in Support: According to the Drug Policy Alliance, a co-sponsor of this bill, “SB 1025 will not change the upper penalty for any offense, but will provide judges the discretion to grant probation or to suspend a sentence in the interests of justice, and consistent with local values and local resources. Current state law ties the hands of judges, prohibiting them from ordering probation or suspending a sentence for a person convicted of nonviolent drug offenses, including possessing or agreeing to sell or transport opiates or opium derivatives, possessing or transporting cannabis, planting or cultivating peyote, and various crimes relating to forging or altering prescriptions, if the person has previously been convicted of any one of an expansive list of drug felonies. Existing law also prohibits judges from granting probation or suspending a sentence for persons convicted of specified nonviolent drug offenses, including possessing for sale or selling 14.25 grams or more of a substance containing heroin and possessing for sale 14.25 grams or more of any salt or solution of phencyclidine or its analogs, even if it is their first offense.
   
   “Precluding probation eligibility for these offenses requires a mandatory term of incarceration ranging from two to seven or more years depending on the offense. By allowing judges the discretion to grant probation, this bill reflects the growing bipartisan consensus that mandatory minimum sentencing has failed to protect or enhance public safety, and robbed judges of their traditional and appropriate role in weighing the facts of each case before imposing a sentence. There is ample evidence that long sentences and mandatory minimums have had no effect on the availability, cost or potency of controlled substances. Controlled substances are cheaper, stronger and more widely available than in any time in our nation’s history.
   
   “Advocates from across the political spectrum recognize that mandatory sentences are unjust and ineffective.”
   
2. Argument in Opposition: According to the California Police Chiefs Association, “This is problematic for law enforcement because some of these offenses include the possession for sale of heroin, cocaine, and phencyclidine (PCP). While these offenses are themselves non-violent these drugs have shown to be fatal. The Office of Statewide Health Planning and Development reported that ‘in the first three months of 2016, 412 adults age 20 to 29 went to emergency room departments due to heroin… double the number for the same time period in 2012.’ Heroin, cocaine, and PCP have taken the lives of over 4,000 innocent victims in 2017 alone, according to the Pew Charitable Trust. Our members are concerned that these numbers will continue to rise if these individuals are granted probation in lieu of time spent in a county jail or state prison.”
   
3. Related Legislation: AB 1941 (Jones-Sawyer), Chapter 18, Statutes of 2018, authorizes the court to reduce an offense punishable as either a felony or a misdemeanor to a misdemeanor upon successful completion of probation, regardless of whether the court had previously imposed a felony sentence.
   
4. Prior Legislation: SB 1010 (Mitchell), Chapter 749, Statutes of 2014, reduced the penalty for possession for sale of cocaine base to be the same as that for powder cocaine; and revised the guidelines for probation eligibility for both the possession for sale of powder cocaine and cocaine base, as specified.

REGISTERED SUPPORT / OPPOSITION:

Support

Drug Policy Alliance (Sponsor)
California Public Defenders Association (Co-Sponsor)

A New Path
A New Way of Life Re-Entry Project
Access Support Network of San Luis Obispo & Monterey Counties
Alameda County Board of Supervisors
American Civil Liberties Union of California
Amity Foundation
Asian Americans Advancing Justice
Berkeley Youth Alternatives
California Attorneys for Criminal Justice
Californians for Safety and Justice
Californians United for a Responsible Budget
Center of Juvenile and Criminal Justice
Center for Living and Learning
Centro Legal de la Raza
Community Oriented Correctional Health Services
Contra Costa Public Defenders Union
Courage Campaign
Ella Baker Center for Human Rights
Equal Justice Society
Fair Chance Project
Families Against Mandatory Minimums
Friends Committee on Legislation of California
Harm Reduction Coalition
Harm Reduction Services
Health Right 360
Homeboy Recycling
Homeless Health Care Los Angeles
Housing and Economics Rights Advocates
Human Impact Partners
Law Enforcement Action Partnership
League of Women Voters of California
Legal Services for Prisoners with Children
Los Angeles Regional Reentry Partnership
Monterey Bay Central Labor Council, AFL-CIO
National Association of Social Workers, California Chapter
Pilipino Workers Center of Southern California
Positive Women’s Network – USA
Prisoner Hunger Strike Solidarity Coalition
Riverside Temple Beth El
Root and Rebound
Rubicon Programs
San Francisco Public Defender
Shields for Families
Sin Barras
Tarzana Treatment Centers
The Advocacy Fund
Transitions Clinic
Unidos US
Women’s Foundation of California
W. Haywood Burns Institute
William C. Velasquez Institute
9to5 Working Women

Two private individuals

Opposition

California Police Chiefs Association

Analysis Prepared by: Sandy Uribe / PUB. S. / (916) 319-3744

1. After the trial court determines that the presumption against probation is overcome, it then must evaluate whether or not to grant probation using the suitability factors listed in the Rules of Court. (See Cal. Rules of Court, rule 4.414.) ↑

 THIRD READING  

Bill No: SB 1025

Author:

:

Vote:

SENATE PUBLIC SAFETY COMMITTEE: 6-1, 3/13/18

AYES: Skinner, Anderson, Bradford, Jackson, Mitchell, Wiener

NOES: Stone

SENATE APPROPRIATIONS COMMITTEE: 5-2, 5/25/18

AYES: Lara, Beall, Bradford, Hill, Wiener

NOES: Bates, Nielsen

SUBJECT:

SOURCE: California Public Defender’s Association

Drug Policy Alliance

DIGEST:

This bill permits a court to grant probation or suspend the imposition of a sentence for specified drug offenses. 

ANALYSIS:

Existing law:

1. Prohibits the court from granting probation to or suspending the imposition of a sentence for any person convicted of specified drug offenses, if the person has previously been convicted of one of several specified drug offenses. (Health & Saf. Code, §11370, subd. (a).)
2. Prohibits the court from granting probation to or suspending the imposition of the sentence for any person convicted of any of the following offenses:
   1. Possession for sale of 14.25 grams or more of a substance containing heroin.
   2. Selling or offering to sell 14.25 grams or more of a substance containing heroin.
   3. Possession of heroin for sale or offering to sell heroin, and who has one or more prior convictions for either offense.
   4. Possession for sale of 14.25 grams or more of any salt or solution of phencyclidine (PCP) or any of its analogs, as specified, or any of the precursors of PCP.
   5. Transporting for sale, importing for sale, or administering, or offering to transport for sale, import for sale, or administer, or by attempting to import for sale or transport for sale, PCP or any of its analogs or precursors.
   6. Selling or offering to sell PCP or any of its analogs or precursors.
   7. Manufacturing or offering to perform an act involving the manufacture of PCP or any of its analogs or precursors.
   8. Using, soliciting, inducing, encouraging, or intimidating a minor to act as an agent to manufacture, compound, or sell any controlled substance, as specified.
   9. Using a minor as an agent or who solicits, induces, encourages, or intimidates a minor with the intent that the minor be in possession of PCP for sale, sells, distributes, or transports PCP, or manufactures PCP or any of its analogs or precursors.
   10. Possession of piperidine, pyrrolidine, or morpholine, and cyclohexanone, with intent to manufacture PCP or any of its analogs.
   11. Possession for sale, selling, or offering to sell cocaine base, cocaine, or methamphetamine, and who has one or more prior drug offense convictions, as specified. (Pen. Code, § 1203.07, subd. (a).)

This bill removes the above listed drug offenses from the prohibition against granting probation or suspending a sentence except for those offenses involving minors.

Background

The prohibition on granting probation or suspending the imposition of a sentence of any person convicted of specified drug offenses can be traced back to the early 1970s. This prohibition was initially limited to those cases in which a person had a prior felony drug conviction, and was later expanded to include any person convicted of specified drug offenses with no prior drug convictions through SB 268 (Robbins, Chapter 1087, Statutes of 1975), which made anyone convicted of possessing for sale, selling or offering to sell one-half ounce or more of heroin ineligible for probation. Subsequent legislation further expanded the list of drug offenses for which a person would no longer be eligible for probation.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

According to the Senate Appropriations Committee:

1. Local supervision: Unknown, potentially-significant costs (local funds, General Fund) for probation departments to supervise additional individuals who otherwise would be mandated to serve a sentence of incarceration.
2. Prison: Unknown, potentially-significant savings (General Fund) in avoided incarceration costs to the extent the court imposes a term of probation for defendants convicted of the specified crimes. The proposed 2018-19 per capita cost to house a person in a state prison is $80,729 annually, with an annual marginal rate per inmate of between $10,000 and $12,000. The average contract-prison rate cost per inmate is over $30,000 annually.

SUPPORT: (Verified 5/25/18)

California Public Defender’s Association (co-source)

Drug Policy Alliance (co-source)

9to5 Working Women

A New Way of Life

Access Support Network of San Luis Obispo and Monterey Counties

ACLU of California, Center for Advocacy and Policy

Alameda County Public Defender’s Office

Amity Foundation

California Attorneys for Criminal Justice

Californians United for a Responsible Budget

Center for Living and Learning

Center on Juvenile and Criminal Justice

Community Oriented Correctional Health Services

Contra Costa County Public Defenders Association

Courage Campaign

Ella Baker Center for Human Rights

Fair Chance Project

Friends Committee on Legislation of California

HealthRIGHT 360

Homeless Health Care Los Angeles

Hope Without Limits

Law Enforcement Action Partnership

League of Women Voters of California

Legal Services for Prisoners with Children

Los Angeles Regional Reentry Partnership

Prisoner Hunger Strike Solidarity Coalition

Riverside Temple Beth El

Root and Rebound

Rubicon Programs

San Francisco Public Defender’s Office

Shields for Families

Tarzana Treatment Centers, Inc.

Transitions Clinic Network

William C. Velasquez Institute

One individual

OPPOSITION: (Verified 5/25/18)

None received

ARGUMENT IN SUPPORT: According to Drug Policy Alliance:

SB 1025 will not change the upper penalty for any offense, but will provide judges the discretion to grant probation or to suspend a sentence in the interests of justice, and consistent with local values and local resources. Current state law ties the hands of judges, prohibiting them from ordering probation or suspending a sentence for a person convicted of nonviolent drug offenses, including possessing or agreeing to sell or transport opiates or opium derivatives, possessing or transporting cannabis, planting or cultivating peyote, and various crimes relating to forging or altering prescriptions, if the person has previously been convicted of any one of an expansive list of drug felonies. Existing law also prohibits judges from granting probation or suspending a sentence for persons convicted of specified nonviolent drug offenses, including possessing for sale or selling 14.25 grams or more of a substance containing heroin and possessing for sale 14.25 grams or more of any salt or solution of phencyclidine or its analogs, even if it is their first offense.

Precluding probation eligibility for these offenses requires a mandatory term of incarceration ranging from two to seven or more years depending on the offense. By allowing judges the discretion to grant probation, this bill reflects the growing bipartisan consensus that mandatory minimum sentencing has failed to protect or enhance public safety, and robbed judges of their traditional and appropriate role in weighing the facts of each case before imposing a sentence. There is ample evidence that long sentences and mandatory minimums have had no effect on the availability, cost or potency of controlled substances. Controlled substances are cheaper, stronger and more widely available than in any time in our nation’s history.

…It is widely acknowledged that the war on drugs has been disproportionately waged against black and Latino families, separating parents from children and causing long-term collateral consequences, including loss of job opportunities, housing and education benefits. This continues to be true, even in light of evidence that drug use and drug sale rates between whites, blacks and Latinos are approximately equal in our state and in our country. According the California Attorney General’s Office, in 2016 blacks made up 16.5% of felony drug arrests (while blacks make up only 6.6% of the state population), and Latinos made up 41.3% of felony drug arrests (while Latinos make up 38.9% of the state population).

SB 1025 by Senator Skinner is an incremental step away from a costly, failed, and racist policy of locking up low-level nonviolent drug offenders for long periods of time. A fair and impartial criminal justice system, like all forms of good government, needs checks and balances. While prosecutors have charging discretion, the final say over a person’s sentence must come from independent judges who have no personal or institutional stake in the outcome of a case other than to ensure justice is done and rights are respected.

Prepared by:

5/26/18 15:11:23

**** END ****

SENATE COMMITTEE ON APPROPRIATIONS

Senator Ricardo Lara, Chair

2017 - 2018 Regular Session

SB 1025 (Skinner) - Probation: eligibility: crimes relating to controlled substances

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

Bill Summary:

SB 1025 would strike mandatory sentences for specified drug commerce crimes.

Fiscal Impact:

• Local supervision: Unknown, potentially-significant costs (local funds, General Fund*) for probation departments to supervise additional individuals who otherwise would be mandated to serve a sentence of incarceration.
• Prison: Unknown, potentially-significant savings (General Fund) in avoided incarceration costs to the extent the court imposes a term of probation for defendants convicted of the specified crimes. The proposed 2018-19 per capita cost to house a person in a state prison is $80,729 annually, with an annual marginal rate per inmate of between $10,000 and $12,000. The average contract-prison rate cost per inmate is over $30,000 annually.

*Proposition 30 (2012) exempts the state from mandate reimbursement for realigned responsibilities for “Public Safety Services” including the managing of local jails and the provision of services for and supervision of youth and adults. The constitutional amendment, however, provides that legislation enacted after September 30, 2012 that has an overall effect of increasing the costs already borne by a local agency for public safety services transferred by the 2011 Realignment Legislation apply to local agencies only to the extent that the state provides annual funding for the costs increase. If the local costs resulting from this measure are determined to be included within the scope of Proposition 30, the local agency would not be obligated to provide the level of service required by this bill above the level for which funding is provided by the state. The provisions of this bill may lead to the additional subvention of funds to obtain local compliance, resulting cost pressure on the General Fund.

Background:

Existing law prohibits the court from granting probation or suspending a sentence for persons convicted of specified crimes relating to controlled substances, including possessing or agreeing to sell or transport opiates or opium derivatives, possessing or transporting marijuana, planting or cultivating peyote, and various crimes relating to forging or altering prescriptions, among other crimes, if the person has previously been convicted of any one of specified felony offenses relating to controlled substances. Existing law also prohibits granting probation or suspending a sentence for persons convicted of specified crimes relating to controlled substances, including possessing for sale or selling 14.25 grams or more of a substance containing heroin and possessing for sale 14.25 grams or more of any salt or solution of phencyclidine or its analogs, among other crimes.

Proposed Law:

This bill would remove the prohibition on the court from granting probation or suspending the imposition or execution of the sentence for the following crimes:

• Possession for sale of 14.25 grams or more of a substance containing heroin;
• Selling or offering to sell 14.25 grams or more of a substance containing heroin;
• Possession of heroin for sale or offering to sell heroin by a person who has one or more prior convictions for either offense;
• Possession for sale of 14.25 grams or more of any salt or solution of phencyclidine (PCP) or any of its analogs, as specified, or any of the precursors of PCP;
• Transporting for sale; importing for sale; administering; offering to transport for sale, import for sale, or administer; or attempting to import for sale or transport for sale, PCP or any of its analogs or precursors;
• Selling or offering to sell PCP or any of its analogs or precursors;
• Manufacturing or offering to perform an act involving the manufacture of PCP or any of its analogs or precursors;
• Possession of piperidine, pyrrolidine, or morpholine, and cyclohexanone, with intent to manufacture phencyclidine or any of its analogs; and
• Possession for sale, selling, or offering to sell cocaine base, cocaine, or methamphetamine, and who has one or more prior drug offense convictions, as specified.

Staff Comments:

While county probation departments supervise more individuals than all other correctional agencies combined, in the last few years, the total number of individuals under supervision by probation departments has declined (e.g., 419,221 adults in 2014 compared to 367,515 in 2016). As of June 30, 2016, there were almost 403,000 people supervised by probation departments in California, including adult and youth populations and individuals on probation (both felony and misdemeanor), post-release community supervision, and mandatory supervision.

In a December 2015 report, the Public Policy Institute of California estimated that the cost of local probation in California was $4,438 per person supervised. Given the criminal justice reforms in recent years (e.g., Public Safety Realignment and Proposition 47 (2014)), probation caseloads have shifted toward supervising people who have committed more serious offenses. This shift in population and other factors likely have led to increased probation operating costs. Despite the growing costs, however, probation supervision has widely remained the least costly form of correctional control. As noted by the Public Policy Institute of California:

According to the California State Controller, probation operating costs grew by $372 million (33.6%) from 2011 to 2015. During the same period, operating costs for adult detention (i.e., jail) grew by $319 million (11.3%) and operating costs for juvenile detention grew by $50 million (4.8%). These figures do not include capital outlays. By comparison, according to the California Department of Finance, costs for the state correctional system—prisons and parole—increased from $9.8 billion in financial year 2011–12 to $12.6 billion in financial year 2015–16 (an increase of 28.5%) (California Department of Finance 2017).^[1]

The actual fiscal impact of this bill to county probation departments is unknown, as it depends on multiple factors, including, but not limited to, how many defendants are convicted of the subject offenses, how often the court exercises its discretion to impose probation, and the variable costs of supervision to each county. But, to the extent the court imposes a term of probation for individuals charged with the specified drug commerce crimes, it would lead to an increased workload for probation departments. The increased workload to probation departments would be equal to the amount of time these individuals otherwise would have been in custody in state prison or serving a (whole or) split sentence in county jail. Under existing law, after the period of incarceration, these individuals ultimately would be placed under the supervision of the probation department, either through post-release community supervision (upon release from prison) or mandatory supervision (upon release from jail). As the general costs of supervising a person on mandatory supervision compared to felony probation is largely the same, this bill would have a neutral fiscal impact at that point. If using the 2015 $4,438 per person cost estimate, having twelve or more individuals supervised on probation for at least one year because of this bill would create a sufficient amount of workload costs to surpass the Suspense File threshold.

Alternatively, this bill could result in costs savings to the state and counties through avoided incarceration. The actual fiscal impact is unknown, as it would be dependent on the number of defendants convicted of the drug commerce crimes, if the court exercises its discretion, and other factors.

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1. Public Policy Inst. of Cal., California Probation in the Era of Reform (August 2017) page 5, footnote 1. ↑

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Nancy Skinner, Chair

2017 - 2018 Regular

Bill No: SB 1025 Hearing Date: March 13, 2018

Subject: Probation: Eligibility: Crimes Relating to Controlled Substances

HISTORY

Source: California Public Defender’s Association; Drug Policy Alliance

Prior Legislation: AB 1667 (Condit), Ch. 1135, Stats. of 1989

SB 1960 (Seymour), Ch. 1044, Stats. of 1986

SB 268 (Robbins), Ch. 1087, Stats. of 1975

Support: ACLU of California, Center for Advocacy and Policy; Community Oriented Correctional Health Services; Courage Campaign; Ella Baker Center for Human Rights; Fair Chance Project; Friends Committee on Legislation of California; Riverside Temple Beth El; Rubicon Programs; San Francisco Public Defender’s Office; Tarzana Treatment Centers, Inc.; Transitions Clinic Network; Individual

Opposition: None known

PURPOSE

The purpose of this bill is to permit a court to grant probation or suspend the imposition of a sentence for specified drug offenses. 

Existing law prohibits the court from granting probation to or suspending the imposition of a sentence for any person convicted of specified drug offenses, if the person has previously been convicted of one of several specified drug offenses. (Health & Saf. Code, §11370, subd. (a).)

Existing law prohibits the court from granting probation to or suspending the imposition of the sentence for any person convicted of any of the following offenses:

1. Possession for sale of 14.25 grams or more of a substance containing heroin.
2. Selling or offering to sell 14.25 grams or more of a substance containing heroin.
3. Possession of heroin for sale or offering to sell heroin, and who has one or more prior convictions for either offense.
4. Possession for sale of 14.25 grams or more of any salt or solution of phencyclidine (PCP) or any of its analogs, as specified, or any of the precursors of PCP.
5. Transporting for sale, importing for sale, or administering, or offering to transport for sale, import for sale, or administer, or by attempting to import for sale or transport for sale, PCP or any of its analogs or precursors.
6. Selling or offering to sell PCP or any of its analogs or precursors.
7. Manufacturing or offering to perform an act involving the manufacture of PCP or any of its analogs or precursors.
8. Using, soliciting, inducing, encouraging, or intimidating a minor to act as an agent to manufacture, compound, or sell any controlled substance, as specified.
9. Using a minor as an agent or who solicits, induces, encourages, or intimidates a minor with the intent that the minor be in possession of PCP for sale, sells, distributes, or transports PCP, or manufactures PCP or any of its analogs or precursors.
10. Possession of piperidine, pyrrolidine, or morpholine, and cyclohexanone, with intent to manufacture phencyclidine or any of its analogs.
11. Possession for sale, selling, or offering to sell cocaine base, cocaine, or methamphetamine, and who has one or more prior drug offense convictions, as specified. (Pen. Code, § 1203.07, subd. (a).)

This bill would remove the above listed drug offenses from the prohibition against granting probation or suspending a sentence except those offenses involving minors.

COMMENTS

1. Need for This Bill

According to the author:

Long prison sentences for nonviolent drug offenses fail to reduce drug use or crime. Yet, California law currently prohibits judges from granting probation to individuals charged with certain nonviolent drug crimes.

Mass incarceration continues to have a devastating effect on California families and our state’s budget. Mandatory sentences for nonviolent drug crimes force judges to imprison individuals who would be better treated and supervised in the community. The result is overcrowding in county jails, unnecessary strain on state and local budgets, and a destructive ripple effect throughout California communities and families.

Overwhelming evidence shows that lengthy sentences for drug crimes, do not improve public safety, but exacerbate existing racial disparities in our criminal justice system and disproportionately impact those suffering from mental illness.

Current law prohibits a judge from ordering probation for a number of nonviolent drug offenses related to personal use, possession, or sale.

Under current law, judges cannot order probation for any of the following offenses if a person has a prior felony drug conviction:

• Possession for personal use
• Possession for sale
• Sale
• Transportation
• Maintaining a place for the unlawful use of controlled substance
• Forging a prescription

Additionally, current law prohibits probation for the following offenses:

• Possession for sale, selling, or offering to sell cocaine, cocaine base, or methamphetamine if the person has one or more prior convictions for the same offense
• Possession for sale of 14.25 grams or more of heroin
• Possession for sale of 14.25 grams or more of phencyclidine (PCP)
• Selling or offering to sell PCP
• Transporting, importing, administration of, or offering to transport, import or administer PCP
• Possessing specified precursors with intent to manufacture PCP

Excluding probation eligibility for these offenses requires a mandatory term of incarceration ranging from two to seven or more years depending on the offense. This mandatory sentencing prevents judges from playing their appropriate role in weighing the facts of each case before imposing a sentence.

SB 1025 provides an option for judges to weigh the facts of the case in determining the appropriate resolution. SB 1025 addresses undue sentencing inflation and paves the way for California to increases investments in drug prevention efforts, drug use treatment, and mental health treatment.

This bill does not change the maximum penalty or affect sentencing enhancements. It also does not change penalties for drug crimes involving a minor. It simply provides discretion to the courts to grant probation in the interest of justice.

2. History of Prohibiting Probation for Drug Offenses

The prohibition on granting probation or suspending the imposition of a sentence of any person convicted of specified drug offenses can be traced back to the early 1970s. The prohibition on granting probation was initially limited to those cases in which a person had a prior felony drug conviction. This prohibition was expanded to include any person convicted of specified drug offenses with no prior drug convictions through SB 268 (Robbins), Chapter 1087, Statutes of 1975, which made anyone convicted of possessing for sale, selling or offering to sell one-half ounce or more of heroin ineligible for probation. Subsequent legislation further expanded the list of drug offenses for which a person would no longer be eligible for probation.

3. Research on Mandatory Minimum Sentences

The effect of the current prohibition on probation for the above listed drug offenses has been the imposition of mandatory sentences. The legislation that created the current prohibition on probation for these drug offenses arose during the “war on drugs” and a time when mandatory sentences were widely viewed as an effective tool to address crime, particularly drug offenses. However, research indicates that “incarceration has had only a limited impact on crime rates” and “[t]here is little evidence that longer sentences have more than a marginal effect in reducing recidivism.” (<https://www.prisonpolicy.org/scans/vera/mandatory-sentences-policy-report-v2b.pdf> (citing several studies and reports) [as of Mar. 7, 2018].)

In addition to examining the efficacy of mandatory sentences on reducing crime and recidivism, researchers have studied the consequences of mandatory sentences, including racial disparities in charging decisions and sentences. One recently published law review article analyzed federal sentencing data and concluded that “racial disparities in recent years have been largely driven by the cases in which judges have the least sentencing discretion: those with mandatory minimums” and that “prosecutors file mandatory minimums twice as often against black men as against comparable white men.” (Starr & Rehavi, Mandatory Sentencing and Racial Disparity: Assessing the Role of Prosecutors and the Effects of Booker (2013)123 Yale L.J. 1, 78.)

This bill seeks to restore judicial discretion in these cases given the growing body of research questioning the efficacy of mandatory minimums and the downstream effects of those policies.

4. Argument in Support

Drug Policy Alliance, a co-sponsor of the bill, writes:

SB 1025 will not change the upper penalty for any offense, but will provide judges the discretion to grant probation or to suspend a sentence in the interests of justice, and consistent with local values and local resources. Current state law ties the hands of judges, prohibiting them from ordering probation or suspending a sentence for a person convicted of nonviolent drug offenses, including possessing or agreeing to sell or transport opiates or opium derivatives, possessing or transporting cannabis, planting or cultivating peyote, and various crimes relating to forging or altering prescriptions, if the person has previously been convicted of any one of an expansive list of drug felonies. Existing law also prohibits judges from granting probation or suspending a sentence for persons convicted of specified nonviolent drug offenses, including possessing for sale or selling 14.25 grams or more of a substance containing heroin and possessing for sale 14.25 grams or more of any salt or solution of phencyclidine or its analogs, even if it is their first offense.

Precluding probation eligibility for these offenses requires a mandatory term of incarceration ranging from two to seven or more years depending on the offense. By allowing judges the discretion to grant probation, this bill reflects the growing bipartisan consensus that mandatory minimum sentencing has failed to protect or enhance public safety, and robbed judges of their traditional and appropriate role in weighing the facts of each case before imposing a sentence. There is ample evidence that long sentences and mandatory minimums have had no effect on the availability, cost or potency of controlled substances. Controlled substances are cheaper, stronger and more widely available than in any time in our nation’s history.

…It is widely acknowledged that the war on drugs has been disproportionately waged against black and Latino families, separating parents from children and causing long-term collateral consequences, including loss of job opportunities, housing and education benefits. This continues to be true, even in light of evidence that drug use and drug sale rates between whites, blacks and Latinos are approximately equal in our state and in our country. According the California Attorney General’s Office, in 2016 blacks made up 16.5% of felony drug arrests (while blacks make up only 6.6% of the state population), and Latinos made up 41.3% of felony drug arrests (while Latinos make up 38.9% of the state population).

SB 1025 by Senator Skinner is an incremental step away from a costly, failed, and racist policy of locking up low-level nonviolent drug offenders for long periods of time. A fair and impartial criminal justice system, like all forms of good government, needs checks and balances. While prosecutors have charging discretion, the final say over a person’s sentence must come from independent judges who have no personal or institutional stake in the outcome of a case other than to ensure justice is done and rights are respected.

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