Existing law imposes an additional term, and authorizes a trial court to impose a specified fine, upon a person who is convicted of a violation of, or of a conspiracy to violate, specified provisions of law with respect to a substance containing heroin, fentanyl, cocaine base, and cocaine, if the substance exceeds a specified weight.

The bill would lower the weight requirements of that crime with regard to fentanyl. By expanding the scope of a crime, this bill would impose a state-mandated local program.

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

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

Date of Hearing: April 16, 2024

Counsel: Andrew Ironside

ASSEMBLY COMMITTEE ON

Kevin McCarty, Chair

ABPCA Bill Id:

Author:() – As Ver:

SUMMARY:

Lowers the amount of fentanyl required for weight enhancements that increase the penalty and fine for the sale or distribution of fentanyl. Specifically, this bill:

1. Provides that a person convicted of specified crimes involving possession of a substance containing fentanyl for the purpose of sale/distribution, or for sale/distribution of a substance containing fentanyl, shall receive the following enhanced punishments:
   
   1. If the substance exceeds 28.35 grams by weight, the person shall receive an additional term of three years.
      
   2. If the substance exceeds 100 grams by weight, the person shall receive an additional term of five years.
      
   3. If the substance exceeds 500 grams by weight, the person shall receive an additional term of seven years.
      
   4. If the substance exceeds one kilogram by weight, the person shall receive an additional term of 10 years.
      
   5. If the substance exceeds four kilograms by weight, the person shall receive an additional term of 13 years.
      
   6. If the substance exceeds 10 kilograms by weight, the person shall receive an additional term of 16 years.
      
   7. If the substance exceeds 20 kilograms by weight, the person shall receive an additional term of 19 years.
      
   8. If the substance exceeds 40 kilograms by weight, the person shall receive an additional term of 22 years.
      
   9. If the substance exceeds 80 kilograms by weight, the person shall receive an additional term of 25 years.
      
2. Prohibits the application of the enhancements to conspirators unless the trier of fact finds that the defendant conspirator was substantially involved in the planning, direction, execution, or financing of the underlying offense.

EXISTING LAW:

1. Provides the following penalties for trafficking of cocaine, cocaine base, heroin and specified opiates, including fentanyl:
   
   1. Possession for sale is punishable by imprisonment for two, three, or four years in the county jail (Health & Saf. Code, § 11351);
      
   2. Sale is punishable as by imprisonment for three, four, or five years in county jail. Sale includes any transfer or distribution (Health & Saf. Code, § 11352.); and,
      
   3. Transportation of fentanyl, to a noncontiguous county, for purposes of sale is punishable by imprisonment for up to nine years in the county jail. (Health & Saf. Code, § 11352.)
      
2. Provides the following additional sentencing enhancements based on the weight of a substance containing heroin, cocaine base, cocaine, or fentanyl possessed for sale or sold.
   
   1. 1 kilogram = 3 years
      
   2. 4 kilograms = 5 years
      
   3. 10 kilograms = 10 years
      
   4. 20 kilograms = 15 years
      
   5. 40 kilograms = 20 years
      
   6. 80 kilograms = 25 years (Health and Saf. Code, § 11370.4, subd. (a).)
      
3. States that in addition to the term of imprisonment provided by law for persons convicted of violating specified drug trafficking crimes, the trial court may impose a fine not exceeding $20,000 for each offense. (Health & Saf. Code, § 11372, subd. (a).)
   
4. Specifies that a person receiving an additional prison term for trafficking more than a kilogram of a substance containing heroin, cocaine base, or cocaine may, in addition, be fined by an amount not exceeding $1,000,000 for each offense. (Health & Saf. Code, § 11372, subd. (b).)
   
5. Specifies that a person receiving an additional prison term for trafficking more than four kilograms of a substance containing heroin, cocaine base, or cocaine may, in addition, be fined by an amount not to exceed $4,000,000 for each offense. (Health & Saf. Code, § 11372, subd. (c).)
   
6. Specifies that a person receiving an additional prison term for trafficking more than four kilograms of a substance containing heroin, cocaine base, or cocaine may, in addition, be fined by an amount not to exceed $8,000,000 for each offense. (Health & Saf. Code, § 11372, subd. (d).)

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, “AB 2782 modernizes the penalties for the fentanyl drug market by restructuring the penalty for those in possession of 28.35 grams or more. This bill would specifically target dealers while simultaneously avoiding addicted victims. The weight limit was selected after working with a local Drug Enforcement Agency agent who specializes in targeting dealers.”
   
2. Fentanyl Use and Distribution: Drug overdoses have increased dramatically in recent years. In California, the number of deaths involving opioids, and fentanyl in particular, has increased significantly over the course of the last decade. Between 2012 and 2018, while opioid-related overdose deaths increased by 42%, overdose deaths related to fentanyl specifically increased by more than 800%—from 82 to 786. (CDPH, Overdose Prevention Initiative <https://www.cdph.ca.gov/Programs/CCDPHP/DCDIC/SACB/Pages/PrescriptionDrugOverdoseProgram.aspx?msclkid=99f1af92b9e411ec97e3e1fe58cde884> [last viewed Mar. 7, 2023].) In 2021, there were 21,016 emergency room visits resulting from an opioid overdose, 7,176 opioid-related overdose deaths, and 5,961 overdose deaths from fentanyl. (CDPH, Overdose Surveillance Dashboard <https://skylab.cdph.ca.gov/ODdash/?tab=Home> [last visited Mar. 7, 2023].). According to the CDC, “[i]t is a major contributor to fatal and nonfatal overdoses in the U.S.” (CDC, Fentanyl Facts <https://www.cdc.gov/stopoverdose/fentanyl/index.html> [last visited Apr. 25, 2023].)
   
   Most of the illicit fentanyl consumed in the United States originates in China, “a major pipeline of the building blocks of fentanyl, known as fentanyl precursors, according to U.S. officials.” (John et al., The US sanctioned Chinese companies to fight illicit fentanyl. But the drug’s ingredients keep coming, CNN.com (Mar. 30, 2023) < https://www.cnn.com/2023/03/30/americas/fentanyl-us-china-mexico-precursor-intl/index.html> [last visited Mar. 31, 2023].). Chemical manufactures in China ship fentanyl precursors to Mexico where drug cartels make fentanyl and arrange for it to be transported across the U.S./Mexico border. (Ainsley, U.S. and Mexico weighing deal from Mexico to crack down on fentanyl going north while U.S. cracks down on guns going south, NBCNews.com (Mar. 27, 2023) <https://www.nbcnews.com/politics/national-security/fentanyl-gun-smuggling-us-mexico-border-deal-rcna75782> [last visited Mar. 31, 2023].) The vast majority of the fentanyl seizures in the U.S. occur at legal ports of entry or interior vehicle checkpoints, and U.S. citizens are primarily the ones trafficking fentanyl. (Bier, Fentanyl Is Smuggled for U.S. Citizens By U.S. Citizens, Not Asylum Seekers, Cato.org (Sept. 14, 2022) <https://www.cato.org/blog/fentanyl-smuggled-us-citizens-us-citizens-not-asylum-seekers> [last visited Mar. 31, 2023].).
   
   Illicit fentanyl is typically available as either a liquid or powder. It is often mixed with other drugs like heroin, cocaine, or methamphetamine, and is widely used in counterfeit prescription opioids. Because of mixing, many users might not be aware that they are consuming fentanyl. (CDC, Fentanyl Facts <https://www.cdc.gov/stopoverdose/fentanyl/index.html> [last visited Apr. 25, 2023].)

Intentional fentanyl use is also on the rise. “One of the deadliest street drugs, illicit fentanyl, has transitioned from a hidden killer that people often hope to avoid to one that many drug users now seek out on its own.” (Edwards, Once feared, illicit fentanyl is now a drug of choice for many opioid users, NBC News (Aug. 7, 2022) <https://www.nbcnews.com/health/health-news/feared-illicit-fentanyl-now-drug-choice-many-opioids-users-rcna40418> [last visited Apr. 24, 2023].)

A recent University of Washington survey of people who had used syringe service programs found that two-thirds had used fentanyl “on purpose” in the last three months. (Kingston et al., University of Washington, Results from the 2021 WA State Syringe Service Program Health Survey (Mar. 2022) at pp. 1, 6 <https://adai.uw.edu/wordpress/wp-content/uploads/ssp-health-survey-2021.pdf> [last visited Apr. 24, 2023].) “More than half of drug users [in the Tenderloin district in San Francisco] purposely seek fentanyl, despite its dangers, according to harm reduction workers who talk to hundreds of drug users every day.” (Vestal, Some Drug Users in Western U.S. Seek Out Deadly Fentanyl. Here’s Why., PEW Charitable Trusts (Jan. 7, 2019) <https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2019/01/07/some-drug-users-in-western-us-seek-out-deadly-fentanyl-heres-why> [last view Apr. 24, 2023].)

1. AB 701 (Villapudua), Chapter 540, Statutes of 2023: AB 701 (Villapudua) applied the existing weight enhancements that increase the penalty and fine for trafficking controlled substances containing heroin, cocaine base, and cocaine to fentanyl. (Pen. Code, § 11370.4, subd. (a).) AB 701 took effect on January 1 of this year—roughly four months ago. This bill would further reduce the amounts required to receive an enhancement for specified drug enhancements involving fentanyl, before the effects (to the extent there is even a reasonable expectation that increasing penalties will achieve meaningful results) of AB 701 can be measured.
   
2. AB 3171 (Soria), of the 2023-2024 Legislative Session: Under existing law, a person convicted of possession for sale of a substance containing fentanyl may be incarcerated for up to four years. (Health & Saf. Code, § 11351.) AB 3171 (Soria) would increase this penalty for a person who possesses for sale 28.35 grams or more of a substance containing fentanyl to a term of imprisonment of up to six years. This bill would add an additional three years to that term. That is, if both this bill and AB 3171 were to become law, the term of incarceration for possessing for sale 28.35 grams or more of a substance containing fentanyl would increase from up to four years to up to nine years. Similarly, a conviction for transporting, importing, or giving away 28.35 grams or more of a substance containing fentanyl would increase from up to 5 years to as many as 12 years; and a conviction for transportation to a noncontiguous county for purposes of sale would increase from up to nine years to 16 years.
   
   Further, the enhancement proposed by this bill would increase as the amount possessed increases. For example, if both this bill and AB 3171 were to become law, the term of incarceration for possessing for sale 100 grams or more of a substance containing fentanyl would increase from up to four years to up to 11 years; a conviction for transporting, importing, or giving away 100 grams or more of a substance containing fentanyl would increase from up to 5 years to as many as 14 years; and a conviction for transportation to a noncontiguous county for purposes of sale would increase from up to nine years to 18 years.
   
3. Harsher Sentences for Drug Trafficking Unlikely to Reduce Drug Use or Deter Criminal Conduct: This bill attempts to reduce the number of people dying of overdoses involving fentanyl by deterring people who traffic fentanyl with a sentencing enhancement ranging from three to 25 years based on amount. Ample research on the impact of increasing penalties for drug offenses on criminal behavior has called into question the effectiveness of such measures. In a report examining the relationship between prison terms and drug misuse, PEW Charitable Trusts found “[n]o relationship between drug imprisonment rates and states’ drug problems,” finding that “high rates of drug imprisonment did not translate into lower rates of drug use, arrests, or overdose deaths.” (PEW, More Imprisonment Does Not Reduce State Drug Problems (Mar. 2018) p. 5 <https://www.pewtrusts.org/-/media/assets/2018/03/pspp_more_imprisonment_does_not_reduce_state_drug_problems.pdf> [last viewed Feb. 6, 2023]; see generally, Przybylski, Correctional and Sentencing Reform for Drug Offenders (Sept. 2009) < http://www.ccjrc.org/wp-content/uploads/2016/02/Correctional_and_Sentencing_Reform_for_Drug_Offenders.pdf> [last visited Mar. 20, 2023].) Put differently, imprisoning more people for longer periods of time for drug trafficking offenses is unlikely to reduce the risk of illicit drugs in our communities.
   
   Unduly long sentences are counterproductive for public safety and contribute to the dynamic of diminishing returns as the incarcerated population expands. (Long-Term Sentences: Time to Reconsider the Scale of Punishment, 87 UMKC L.Rev. 1 (Nov. 5, 2018).) According the U.S. Department of Justice, “Laws and policies designed to deter crime by focusing mainly on increasing the severity of punishment are ineffective partly because criminals know little about the sanctions for specific crimes. More severe punishments do not ‘chasten’ individuals convicted of crimes, and prisons may exacerbate recidivism.” (National Institute of Justice, U.S. Department of Justice, Five Things About Deterrence (June 5, 2016) <https://nij.ojp.gov/topics/articles/five-things-about-deterrence> [last visited Feb. 2, 2023.]) Increasingly punitive sentences add little to the deterrent effect of the criminal justice system; and mass incarceration diverts resources from program and policy initiatives that hold the potential for greater impact on public safety. (Long-Term Sentence, supra.)
   
   The Council on Criminal Justice reviewed the evidence on the effect of harsher punishments on criminal behavior and came to the same conclusion. It reported:
   

The empirical evidence on selective incapacitation suggests that long sentences may produce short- and long-term public safety benefits for individuals engaged in violent offending, but may produce the opposite effect for those engaged in drug-related offending…where an incarcerated individual is quickly replaced by a new recruit. This “replacement effect” occurs—and undermines the overall crime-reducing effects of incapacitation—when there is “demand” for a particular criminal activity. The illicit drug business offers the most obvious example: when someone who plays a role in a drug trafficking organization is incarcerated, someone else must take his or her place.

(Long Sentences Task Force, Council on Criminal Justice, The Impact of Long Sentences on Public Safety: A Complex Relationship (Nov. 2022) p. 8 https://counciloncj.org/wp-content/uploads/2022/11/Impact-of-Long-Sentences-on-Public-Safety.pdf [last visited Apr. 2023] [internal citations omitted] [emphasis added].)

According to PEW, “[A] large body of prior research…cast[s] doubt on the theory that stiffer prison terms deter drug misuse, distribution, and other drug-law violations.” (PEW, supra.) PEW concludes:

Putting more drug-law violators behind bars for longer periods of time has generated enormous costs for taxpayers, but it has not yielded a convincing public safety return on those investments. Instead, more imprisonment for drug offenders has meant limited funds are siphoned away from programs, practices, and policies that have been proved to reduce drug use and crime. (Ibid.)

Based on this research, one might reasonably question whether increasing the penalties for drug trafficking fentanyl would meaningfully impact the drug’s availability or the number of deaths resulting from its illicit fentanyl use.

1. Argument in Support: According to the Madera Police Department, “Under existing law, penalties, including additional terms of imprisonment and fines, are determined based on the weight of controlled substances such as fentanyl. AB 2782 aims to address perceived issues with the current weight thresholds in fentanyl-related cases.
   
   “The identified problem lies in the potential for disproportionate consequences faced by individuals involved in fentanyl-related offenses due to existing weight thresholds. This issue underscores the importance of reassessing and refining the weight requirements exclusively for fentanyl to ensure a fair and just legal system.
   
   “AB 2782 offers a pragmatic solution by proposing a targeted modification to the weight thresholds exclusively for offenses involving fentanyl. This focused reevaluation aims to align the legal framework with the unique characteristics of cases involving fentanyl-containing substances, fostering a more equitable approach.”
   
2. Argument in Opposition: According to the Vera Institute of Justice, “With more than sixty years of experience helping to implement practical and equitable policies for safety and justice, we know that the threatened punishments in AB 2782 are the latest iteration of ineffective public safety strategies that are perceived as ‘tough on crime’ but do little to make communities safer.
   
   “The threat of fentanyl and other deadly drugs to our communities is evident and urgent, and this legislature has an important role to play in helping to save lives and prevent overdoses. But while increased penalties for controlled substances may signal that lawmakers are “tough on crime,” they are not effective at delivering public safety.
   
   “Increasing penalties will do little to deter drug activity. Study after study has shown that because the perceived harshness of a potential sentence is not a significant consideration for those who engage in criminal activity, increased penalties are ineffective at deterring crime.1 Indeed, evidence shows there is no relationship between imprisonment for drug crimes and three important indicators of drug activity: self-reported drug use, drug overdose deaths, and drug arrests.
   
   “Rather than resorting to ineffective harsh penalties to address dangerous drug use, the legislature should invest in real solutions through a public health approach. Research has consistently shown that community-based substance use treatment effectively reduces drug use. Likewise, medication treatment has been shown to reduce overdose deaths by 34 to 38 percent. California should put resources towards preventative evidence-backed public health solutions rather than reflexively reaching for harsh and ineffective sentences.
   
   “Fentanyl and other deadly drugs pose real risks to our communities, and the legislature must act boldly to prevent more overdoses and deaths. But decades of unambiguous evidence make clear that harsher sentences are not the answer, and it is irresponsible for lawmakers to return to this well of ineffective and destructive policies expecting a different result. It is long past time to reject the reach for ‘tough’ drug sentencing policies in favor of real solutions that address substance use.”
   
3. Related Legislation:
   
   1. AB 3171 (Soria), would increase the penalties for drug trafficking of fentanyl, an analog of fentanyl, or a substance containing fentanyl or an analog of fentanyl, if the amount of fentanyl weighs more than 28.35 grams. AB 3171 will be heard today in this committee.
      
   2. AB 1848 (Davies), would expand an existing one year sentencing enhancement for any person over the age of 18 who induces a minor to transport, carry, sell, give away, prepare for sale, or sell heroin, cocaine, or cocaine base on any church, synagogue, youth center, day care, or public swimming pool grounds to include the transport, carry, sell, give away, prepare for sale, or sell heroin, cocaine, cocaine base, and fentanyl either on the grounds of, or within 1000 feet from a church, synagogue, youth center, day care, or public swimming pool. The hearing on AB 1848 was canceled at the request of the author.
      
   3. AB 2045 (Hoover), would add fentanyl to the list of controlled substance for which a defendant may be sentenced to an additional period of incarceration for using, inducing, or employing a minor to transport or possess specified controlled substances. AB 2045 is pending hearing in the Assembly Appropriations Committee.
      
4. Prior Legislation:
   
   1. AB 701 (Villapudua), Chapter 540, Statutes of 2023, applied the existing weight enhancements that increase the penalty and fine for trafficking controlled substances containing heroin, cocaine base, and cocaine to fentanyl.
      
   2. AB 955 (Petrie-Norris), of the 2023-2024 Legislative Session, would provide that a person who sells fentanyl on a social media platform in California shall be punished by imprisonment for a period of three, six, or nine years in county jail. This committee retained AB 955 of interim study.
      
   3. AB 1058 (Jim Patterson), of the 2023-2024 Legislative Session, was identical to AB 3171 above. AB 1058 failed passage in this committee.
      
   4. SB 62 (Nguyen), of the 2023-2024 Legislative Session, was substantially similar to AB 701 above. SB 62 failed passage in the Senate Public Safety Committee.
      
   5. SB 237 (Grove), of the 2023-2024 Legislative Session, was identical to AB 3171 above. SB 237 failed passage in the Senate Public Safety Committee.
      
   6. AB 1955 (Nguyen), of the 2021-2022 Legislative Session, was substantially similar to AB 701 above. AB 1955 failed passage in this committee.
      
   7. AB 1351 (Petrie-Norris), of the 2021-2022 Legislative Session, was substantially similar to AB 701 above. The hearing on AB 1351 was canceled at the request of the author.
      
   8. AB 2975 (Petrie-Norris), of the 2019-2020 Legislative Session, was substantially similar to AB 701 above. AB 2975 was not heard in this committee.
      
   9. AB 2467 (Jim Patterson), of the 2017-2018 Legislative Session, was identical to AB 3171 above. SB 2467 failed passage in this committee.
      
   10. SB 1103 (Bates), of the 2017-2018 Legislative Session, was substantially similar to AB 701 above. SB 1103 failed passage in the Senate Public Safety Committee.
       
   11. SB 1323 (Bates), of the 2015-2016 Legislative Session, was substantially similar to AB 701 above. SB 1323 was held on the Assembly Appropriations Committee Suspense File.
       

REGISTERED SUPPORT / OPPOSITION:

Support

California Association of Highway Patrolmen
California District Attorneys Association
California Police Chiefs Association
California State Sheriffs' Association
Fresno County Sheriff's Office
Madera Police Department
Peace Officers Research Association of California (PORAC)

Opposition

ACLU California Action
California Public Defenders Association
Californians for Safety and Justice
Felony Murder Elimination Project
Friends Committee on Legislation of California
Initiate Justice
Initiate Justice Action
Legal Services for Prisoners With Children
San Francisco Public Defender
Smart Justice California, a Project of Tides Advocacy
Vera Institute of Justice

Analysis Prepared by: