AB 3071: Controlled substances: fentanyl sales.
- Session Year: 2023-2024
- House: Assembly
- Latest Version Date: 2024-03-21
Current Status:
Failed
(2024-04-23: In committee: Hearing postponed by committee.)
Introduced
In Committee
First Chamber
In Committee
Second Chamber
Enacted
Existing law classifies controlled substances into 5 schedule and places the greatest restrictions and penalties on the use of those substances placed in Schedule I. Existing law classifies the drug fentanyl in Schedule II. Existing law makes possession of a controlled substance for the purposes of sale of the substance punishable by imprisonment in a county jail for a period of 2, 3, or 4 years. Existing law makes transportation and sales of a controlled substances punishable by imprisonment in a county jail for a period of 3, 4, or 5 years and transportation.
This bill would increase penalties for an individual who is convicted of one of the above-described offenses that occurred within 10 years of a conviction of possession for sale or transportation for sale related to fentanyl or its analogs, as defined. The bill would also require an individual who is convicted of possession for sale or transportation for sale related to fentanyl and who is granted probation to serve a minimum of 90 days in county jail. The bill would impose a minimum county jail term of 180 days for an individual who is convicted of possession for sale or transportation for sale that occurred within 10 years of a specified conviction related to fentanyl, and impose a minimum county jail term of one year for an individual that has two specified convictions related to fentanyl. The bill would additionally require, as a condition of probation, that an individual pay a specified fine, complete a fentanyl awareness program, and submit to search and seizure by an officer, as specified. By increasing the term of confinement in county jail, this bill would create 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.
Existing law prohibits the possession of specified controlled substances, except as exempted.This bill would state the intent of the Legislature to enact legislation relating to controlled substances.Existing law prohibits the possession of specified controlled substances, except as exempted.
This bill would state the intent of the Legislature to enact legislation relating to controlled substances.
(a)Except as described in subdivisions (b) and (c) and as otherwise provided in this division, every person who possesses for sale or purchases for purposes of sale (1) any controlled substance specified in subdivision (b), (c), or (e) of Section 11054, specified in paragraph (14), (15), or (20) of subdivision (d) of Section 11054, or specified in subdivision (b) or (c) of Section 11055, or specified in subdivision (h) of Section 11056, or (2) any controlled substance classified in Schedule III, IV, or V which is a narcotic drug, shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for two, three, or four years.
(b)A subsequent violation that occurs within 10 years of a conviction of either this section or Section 11352 that related to fentanyl or its analogs, as described in Section 11401, shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for 3, 4, or 5 years.
(c)A subsequent violation that occurs within 10 years of two or more separate convictions of either this section or Section 11352 that related to fentanyl or its analogs, as described in Section 11401, shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for 4, 6, or 9 years.
SEC. 2.Section 11352 of the Health and Safety Code is amended to read:11352.(a)Except as described in subdivisions (e) and (f) and as otherwise provided in this division, every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport (1) any controlled substance specified in subdivision (b), (c), or (e), or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (14), (15), or (20) of subdivision (d) of Section 11054, or specified in subdivision (b) or (c) of Section 11055, or specified in subdivision (h) of Section 11056, or (2) any controlled substance classified in Schedule III, IV, or V which is a narcotic drug, unless upon the written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for three, four, or five years.
(b)Notwithstanding the penalty provisions of subdivision (a), any person who transports any controlled substances specified in subdivision (a) within this state from one county to another noncontiguous county shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for three, six, or nine years.
(c)For purposes of this section, transports means to transport for sale.
(d)This section does not preclude or limit the prosecution of an individual for aiding and abetting the commission of, or conspiring to commit, or acting as an accessory to, any act prohibited by this section.
(e)A subsequent violation that occurs within 10 years of a conviction of either this section or Section 11351 that related to fentanyl or its analogs, as described in Section 11401, shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for 4, 5, or 6 years.
(f)A subsequent violation that occurs within 10 years of two or more separate convictions of either this section or Section 11351 that related to fentanyl or its analogs, as described in Section 11401, shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for 4, 6, or 9 years.
SEC. 3.Section 1203.77 is added to the Penal Code, to read:1203.77.(a)(1)If the court grants probation to a person convicted of a violation of Section 11351 or 11352 of the Health and Safety Code related to fentanyl and its analogs, as described in Section 11401 of the Health and Safety Code in addition to any other terms and conditions imposed by the court, the court shall impose as a condition of probation that the person pay a fine of at least three hundred ninety dollars ($390), but not more than one thousand dollars ($1,000). Except as otherwise provided, the court shall require, as a condition of probation, that the person be confined in a county jail for at least 90 days, but not more than six months.
(2)The court shall also require as a condition of probation that the person enroll, participate in, and successfully complete a fentanyl awareness program, as designated by the court. The court shall revoke the persons probation, except for good cause shown, for the failure to enroll in, participate in, or complete a program.
(3)The court shall also impose as a condition of probation that the person submit their person, place, property, automobile, electronic storage devices, and any other objects under their control, including, but not limited to, cell phones and computers, to search and seizure by an law enforcement officer or probation officer, any time of the day or night, with or without a warrant, and with or without the persons presence or further consent.
(b)If the court grants probation to a person convicted of a violation of Section 11351 or 11352 of the Health and Safety Code that occurred within 10 years of a conviction of either of those sections related to fentanyl or its analogs, as described in Section 11401 of the Health and Safety Code, in addition to the terms described in subdivision (a) and any other terms and conditions imposed by the court, the court shall impose as a condition of probation that the person pay a fine of not less than three hundred ninety dollars ($390) nor more than one thousand dollars ($1,000). Except as otherwise provided, the court shall require, as a condition of probation, that the person be confined in a county jail for at least 180 days, but not more than one year.
(c)If the court grants probation to a person convicted of a violation of Section 11351 or 11352 of the Health and Safety Code that occurred within 10 years of two or more convictions of either Section 11351 or 11352 related to fentanyl or its analogs, as described in Section 11401, in addition to the terms described in paragraphs (2) and (3) of subdivision (a) and any other terms and conditions imposed by the court, the court shall impose as a condition of probation that the person pay a fine of not less than three hundred ninety dollars ($390) nor more than one thousand dollars ($1,000). Except as otherwise provided, the court shall require, as a condition of probation, that the person be confined in a county jail for one year.
SEC. 4.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.
SECTION 1.It is the intent of the Legislature to enact legislation relating to controlled substances.It is the intent of the Legislature to enact legislation relating to controlled substances.
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Date
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Status
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| Apr 23, 2024 | In committee: Hearing postponed by committee. |
| Apr 1, 2024 | Re-referred to Com. on PUB. S. |
| Mar 21, 2024 | From committee chair, with author's amendments: Amend, and re-refer to Com. on PUB. S. Read second time and amended. |
| Mar 21, 2024 | Referred to Com. on PUB. S. |
| Feb 17, 2024 | From printer. May be heard in committee March 18. |
| Feb 16, 2024 | Read first time. To print. |
This list shows positions taken on this bill by organizations on the date displayed, which is linked to the original source.
Positions by individuals are not included.
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Organization
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Position
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Date
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| Aclu California Action | ** Against | |
| California Alliance for Youth and Community Justice | ** Against | |
| California Attorneys For Criminal Justice | ** Against | |
| Californians for Safety and Justice | ** Against | |
| Californians United for a Responsible Budget | ** Against | |
| Drug Policy Alliance | ** Against | |
| Ella Baker Center For Human Rights | ** Against | |
| Friends Committee On Legislation Of California | ** Against | |
| Initiate Justice | ** Against | |
| LA Defensa | ** Against | |
| Legal Services for Prisoners with Children | ** Against | |
| Placer County District Attorney's Office | ** Support | |
| San Francisco Public Defender | ** Against | |
| Smart Justice California, a project of Tides Advocacy | ** Against | |
| Team Justice | ** Against | |
| Uncommon Law | ** Against | |
| Vera Institute Of Justice | ** Against | |
| Young Women's Freedom Center | ** Against |
Date of Hearing:
Counsel: Andrew Ironside
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Kevin McCarty, Chair
ABPCA Bill Id:AB 3071
Author:(Joe Patterson) – As Amended Ver:March 21, 2024
SUMMARY:
Increases the penalties for a second or subsequent conviction of possession of fentanyl for sale or the transfer or distribution of fentanyl, and requires the imposition of a fine and incarceration as a condition of probation for those offenses. Specifically, this bill:
- Provides that a subsequent conviction for the possession of fentanyl for sale or the transfer or distribution of fentanyl that occurs within 10 years of a prior conviction for either possession of fentanyl for sale or the transfer or distribution of fentanyl or its analogs shall be punished by imprisonment in county jail for 3, 4, or 5 years.
- Provides that a subsequent conviction for transfer or distribution of fentanyl that occurs within 10 years of a prior conviction for either possession of fentanyl for sale or the transfer or distribution of fentanyl or its analogs shall be punished by imprisonment in county jail for 4, 5, or 6 years.
- Provides that a subsequent conviction for the possession of fentanyl for sale or the transfer or distribution of fentanyl that occurs within 10 years of two or more separate convictions for those offenses related to fentanyl or its analogs shall be punished by imprisonment in county jail for 4, 6, or 9 years.
- Requires a court, upon a grant probation to a person convicted of the possession of fentanyl for sale or the transfer or distribution of fentanyl, to impose as a condition of probation a fine of $390 to $1,000, and a term of incarceration in county of at least 90 days and up to 6 months.
- Requires the court to also require as a condition of probation that the person enroll, participate in, and successfully complete a fentanyl awareness program, as designated by the court.
- Requires the court to revoke the person’s probation, except for good cause shown, for the failure to enroll in, participate in, or complete a fentanyl awareness program.
- Requires the court to also impose as a condition of probation that the person submit their person, place, property, automobile, electronic storage devices, and any other objects under their control, including, but not limited to, cell phones and computers, to search and seizure by an law enforcement officer or probation officer, any time of the day or night, with or without a warrant, and with or without the person’s presence or further consent.
- Requires a court, upon a grant probation to a person convicted of the possession of fentanyl for sale or the transfer or distribution of fentanyl that occurred within 10 years of a conviction of either offense related to fentanyl or its analogs, to impose as a condition of probation a fine of $390 to $1,000, and a term of incarceration in county jail of at least 180 days and up to 1 year.
- Requires a court, upon a grant probation to a person convicted of the possession of fentanyl for sale or the transfer or distribution of fentanyl that occurred within 10 years of two or more convictions of either offense related to fentanyl or its analogs, to impose as a condition of probation a fine of $390 to $1,000, and a term of incarceration in county jail of 1 year.
EXISTING LAW:
- Provides that a person who possess fentanyl for sale or purchases fentanyl for sale shall be punished by imprisonment in county jail for two, three, or four years. (Health & Saf. Code, § 11351.)
- Provides that a person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to do any of these acts, shall be punished by imprisonment in county jail for three, four, or five years. (Health & Saf. Code, § 11352, subd. (a).)
- Provides that a persons who transports fentanyl within this state from one county to another noncontiguous count shall be punished by imprisonment in county jail for three, six, or nine years. (Health & Saf. Code, § 11352, subd. (b).)
- Provides that, except as specified, the term "controlled substance analog" means either of the following:
- A substance the chemical structure of which is substantially similar to the chemical structure of specified controlled substances; or,
- A substance which has, is represented as having, or is intended to have a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to, or greater than, the stimulant, depressant, or hallucinogenic effect on the central nervous system of specified controlled substances. (Health & Saf. Code, § 11401, subd. (b)(1) & (2).)
- A substance the chemical structure of which is substantially similar to the chemical structure of specified controlled substances; or,
- Specifies that the term "controlled substance analog" does not mean “any substance for which there is an approved new drug application as specified under the federal Food, Drug, and Cosmetic Act or which is generally recognized as safe and effective as specified by the federal Food, Drug, and Cosmetic Act.” (Health & Saf. Code, § 11401, subd. (c)(1).)
- Requires the trial court to, as a condition of probation, order a person to secure education or treatment from a local community agency designated by the court, if the service is available and is likely to benefit from the service, whenever that person is granted probation by the court after conviction for a violation of any controlled substance offense. (Health & Saf. Code, § 11373, subd. (a).)
- Requires the court to require, as a condition of probation, participation in and completion of an appropriate drug treatment program. (Pen. Code, § 1210.1, subd. (a).)
- Authorizes the court, if it determines that there are circumstances in mitigation of the punishment prescribed by law or that the ends of justice would be served by granting probation to the person, to place a person convicted of a felony on probation if that person is not otherwise precluded by law from being placed on probation. (Pen. Code, § 1203, subd. (b)(3).)
- Requires the court, when a defendant is granted probation by the trial court after conviction specified controlled substance violations any amount of fentanyl, carfentanil, benzimidazole opiate, or an analog thereof, to order that person to successfully complete a fentanyl and synthetic opiate education program, if one is available. (Health & Saf. Code, § 11373, subd. (a)(4)(A).)
- A fee shall not be imposed for participation or enrollment in a fentanyl and synthetic opiate education program. (Health & Saf. Code, § 11373, subd. (a)(4)(B).)
- 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 the probation officer. (Pen. Code, § 1203, subd. (a).)
FISCAL EFFECT:
Unknown
COMMENTS:
- Author's Statement: According to the author, “Having lost neighbors and family members to the fentanyl crisis, I am compelled to address the pressing issue of illicit fentanyl sales and its devastating impact on our communities. Fentanyl, a potent synthetic opioid, has emerged as a grave public health concern, contributing significantly to the opioid crisis gripping our State. While existing laws classify fentanyl as a Schedule II controlled substance, current penalties for offenses related to its sale and transportation may not be commensurate with the severity of the threat it poses. I firmly believe we need a three pronged approach: treatment for those with substance use disorder, education for everyone and, equally as important, accountability - especially for repeat offenders who know the risks. It is imperative that we take decisive action to curb the illicit distribution of fentanyl and hold perpetrators accountable for their actions.”
- Fentanyl Awareness Program: Under this bill, a court would be required to order a person as a condition of probation to enroll, participate in, and successfully complete a fentanyl awareness program, as designated by the court. Last year, AB 890 (Joe Patterson), Chapter 818, Statutes of 2023, required a court to order a defendant who is granted probation for the same offenses involving fentanyl and other specified opiates covered by this bill to complete a fentanyl and synthetic opiate education program. The difference between a fentanyl awareness program and a fentanyl education program is unclear. Further, one might reasonably question the value of a fentanyl education program that fails to make participants aware of the dangers of fentanyl, or provide any of the information covered by the fentanyl awareness program proposed by this bill. Perhaps an amendment clarifying that a person on probation need only attend the existing education program or the awareness program is warranted.
Further, AB 890 required a court refer defendants to fentanyl education programs that are available at no cost to participants. This does not have a similar provision for referrals to fentanyl awareness programs.
- Fines, Fees, and Assessments: This bill would impose as a condition of probation for the conviction of possession of fentanyl or the transfer or distribution of fentanyl a fine of between $390 and $1,000. With additional fees and assessments, the actual cost to the defendant would be considerably higher than the base fine. For example, the minimum base fine under this bill of $390 would be subject to the following additional fees and assessments:
Penal Code section 1464 state penalty on fines: $390 ($10 for every $10)
Penal Code section 1465.7 state surcharge: $78 (20% surcharge)
Penal Code section 1465.8 court operation assessment: $40 ($40 fee per criminal offense)
Government Code section 70372 court construction penalty: $195 ($5 for every $10)
Government Code section 70373 assessment: $35 ($35 for each infraction)
Government Code section 76000 penalty: $273 ($7 for every $10)
Government Code section 76000.5 EMS penalty: $78 ($2 for every $10)
Government Code section 76104.6 DNA fund penalty: $39 ($1 for every $10)
Government Code section 76104.7 additional DNA fund penalty: $156 ($4 for every $10)
As such, after additional fees and assessments, the actual cost to the defendant of the fine would start at $1,674 and could exceed $4,000. The actually amount could far exceed $4,000 depending on the facts. (See e.g., Health & Saf. Code, § 11352.5, subd. (1) [imposing a $50,000 fine for possessing for sale 14.25 grams or more of a substance containing heroin, which is often mixed with fentanyl].) The total cost also does not account for cost of drug treatment and attending a fentanyl education program and/or a fentanyl awareness program, to the extent either of those programs even exist.
- Harsher Sentences for Drug Trafficking Unlikely to Reduce Drug Use or Deter Criminal Conduct: The number of deaths involving opioids, and fentanyl in particular, has increased significantly over the course of the last decade. In California, between 2019 and 2022, the number of opioid-related deaths in the state increased by 121 percent. (Ibarra et al., California’s opioid deaths increased 121% in 3 years. What’s driving the crisis?, CalMatters.org (July 25, 2023) <https://calmatters.org/explainers/california-opioid-crisis/> [last visited Feb. 21, 2024].) In 2022, the year for which the most recent data is available, there were 21,316 emergency room visits resulting from an opioid overdose, 7,385 opioid-related overdose deaths, and 6,473 overdose deaths from fentanyl. (CDPH, Overdose Surveillance Dashboard <https://skylab.cdph.ca.gov/ODdash/?tab=Home> [last visited Feb. 21, 2024].)
This bill attempts to reduce the number of people dying of overdoses involving fentanyl by deterring people who sell fentanyl with increased penalties for subsequent convictions. 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 to 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…
Additional analyses further indicate that incarcerating people for drug trafficking may result in increased crimes rates in general and increased rates of violent crime, specifically, because of organizational destabilization and the need for new recruits to prove themselves.
(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. 24, 2023] [internal citations omitted] [emphasis added].)
Additionally, as the Council on Criminal Justice’s report notes, the harsher punishments for drug offenses may actually do harm. For example, they may push persons selling and using drugs to engage in riskier behaviors. (See Friedman et al., Relationships of deterrence and law enforcement to drug-related harms among drug injectors in US metropolitan areas (2006) AIDS Vol 20 No 1.)
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.
- People Who Deal Drugs Are Often People Who Use Drugs: Persons who participate in the drug trade often are themselves people who use drugs. According to the National Research Council: “Facing limited opportunities in legal labor markets and already in contact with drug-selling networks, users provide a ready low-wage labor pool for illegal markets.” (https://nap.nationalacademies.org/read/12976/chapter/4 - 24). According to a Bureau of Justice Statistics report, 70% of persons serving time in state prison for drug trafficking offenses used drugs in the month before the offense, and 42.3% of those persons had been using drugs at the time of their offense. (Bureau of Justice Statistics, Special Report: Drug Use and Dependence, State and Federal Prisoners, 2004 (Oct. 2006) a p. 5 <https://bjs.ojp.gov/content/pub/pdf/dudsfp04.pdf> [last visited Mar. 20, 2023].)
According to one study, “[Street-involved youth implicated in the drug trade] appear to be motivated by drug dependence,” finding: “Among participants who reported drug dealing, 263 (85.6%) individuals stated that the main reason that they sold drugs was to pay for their personal drug use.” (Werb et al., Risks surrounding drug trade involvement among street-involved youth, Am. J. Drug Alcohol Abuse (2008) < https://pubmed.ncbi.nlm.nih.gov/19016187/> [last visited Feb. 2, 2023].)
Still another found that “White youths who misused prescription drugs were three times more likely to sell drugs, compared to White youths who did not misuse prescription drugs.” (Floyd et al., Adolescent Drug Dealing and Race/Ethnicity: A Population-Based study of the Differential Impact on Substance Use on Involvement in Drug Trade, Amer. J. of Drug & Alcohol Abuse, Vol. 36, No. 2 (Mar. 2010) <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2871399/ - R7> [last visited Mar. 17, 2022].)
Will the threat of a longer term of incarceration deter people already at a relatively high risk of death from illicit drug use?
- Argument in Support: According to the Placer County District Attorney: The state of California, through the legislature and judiciary, has utilized similar legal frameworks in addressing the crime of impaired driving. The state has used a framework similar to AB 3071 to hold those who engage in dangerous behavior accountable and to deter behavior that we know could result in the loss of a life. AB 1931 [sic] creates a similar framework for the sales of illegal narcotics, including fentanyl.
This committee is well aware of the dangers of fentanyl and how this poison is devastating our communities. From the child who is deceived, to the person who is struggling with addiction, this crisis is affecting everyone. It is robbing our residents of the ability to make mistakes or embark on a path to rehabilitation. Last year, this committee overwhelmingly supported a fentanyl education panel during probation, much like we see for DUIs. I also joined our Attorney General last year for the state’s first ever fentanyl murder sentencing in Placer County, also a legal theory mirrored from DUIs.
This bill simply asks that we bridge the current legal gap and create a legal framework to prevent deaths before they happen, while encouraging dealers to turn their lives around. When someone comes in to a community to sell this poison, they are either deceiving their buyer or exploiting someone’s addiction – both abhorrent. Local communities should be given the tools to hold those who choose profit over people accountable. This is not about locking someone up; this is about saving lives. Further, a more robust legal framework for fentanyl dealers will allow our criminal justice system to utilize the rehabilitation tools that our state has invested millions of dollars in over the course of the past decade to give the defendants the resources they need to choose another path that does not exploit human life.
- Argument in Opposition: According to the Drug Policy Alliance, “This bill presents a misguided, punitive, and counterproductive path that will not have any impact in the availability of fentanyl in California. Sentencing laws that dramatically increase penalties for drug offenses have been widely studied and what the research demonstrates is that these have resulted in the unnecessary confinement of low-level sellers, racial disparities in the criminal legal system, and a waste of public resources. Even more, imposing mandatory minimum jail terms that could range between 90 days to one year will not deter drug offenses or make communities safer. This has been corroborated by the National Research Council that concluded in a 2014 report that mandatory minimum sentences for drug and other offenders “have few if any deterrent effects.” Other researchers have pointed out that “even if street-level drug dealers are apprehended and incarcerated, such offenders are easily replaced, ensuring that drug trafficking can continue.” Based on these findings and relying on over 30 years of research, one can make the assumption that AB 3071 will result in a cycle of arrests that will only devastate communities and will fail to disrupt the drug trade.
“In addition, the legislation ignores the reality that incarceration is associated with increased risk for overdose death. An investigating report last month, revealed that people are dying at record numbers in California jails, drug overdoses are among the top three causes of death. While AB 3071 focuses on drug offenses pertaining to sales, the truth is that people who sell are also users, the latest research shows that 87.5% of people who reported selling drugs also used drugs. The Prison Policy Institute notes in a recent brief that “at least two million people with substance use disorders are arrested annually.” Data from 2007 to 2009’s National Inmate Surveys estimated that 63 percent of people serving sentences in jails met the criteria for a substance use disorder. Exposing people with substance use disorder to jail even for short period of times can be deadly, periods of abstinence, limited access to evidence based treatment and naloxone while incarcerated and when released, can disrupt the health and social supports. The days and weeks following release from incarceration are also a particularly high-risk period for overdose death. Doubling down on a punitive response to the fentanyl crisis will undoubtedly contribute to preventable overdose deaths.
“More troubling, the provision of AB 3071 of allowing courts to impose as a condition of probation that the person submit all objects under their control to searches and seizures by a law enforcement officer or probation officer, any time of the day or night, with or without a warrant, and with or without the person’s presence or further consent, is a clear erosion of fourth amendment rights. This could lead to arbitrary and dangerous encounters with law enforcement, especially for people of color. For instance, Black people are nearly 12 times more likely than white people to experience police misconduct and during traffic stops, African American and Latinx individuals are the most likely groups to experience a search or arrest. These experiences are obscured by the proposed legislation, warrantless searches will not only disrupt the community’s relationship and trust with the law enforcement officers but will also discourages people from employing lifesaving mechanism to prevent overdoses.
“In a year when California is facing a budget deficit in the billions of dollars and resources are limited, it’s crucial that the legislature prioritizes investments on interventions that are in rooted in public health, grounded in science and evidence and are cost-effective. Nationally, jails cost taxpayers, $25 billion per year. This money could be allocated to other substance use programs that better serve the needs of the community. For instance, the approximate cost of a year of methadone treatment for an opioid dependent person is $6,552. The approximate cost of buprenorphine treatment is less than $6,000. It would be healthier, safer and better for public safety to send people to methadone treatment, or buprenorphine treatment, than to incarcerate them. Funding a robust, voluntary drug treatment system is a far more intelligent investment for public safety and for all Californians.
“It is time for bold action. We must follow the science and work towards implementing evidence-based approaches to achieve a transformative change in our approach to the overdose crisis. Instead of increasing penalties and imposing mandatory minimum sentences, the state should focus on allowing the implementation of overdose prevention services, protecting and expanding Good Samaritan Laws, increasing access to methadone, buprenorphine, drug checking services, harm reduction resources, naloxone, and fact-based drug education.” - Related Legislation:
- 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.
- 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.
- AB 2782 (Jim Patterson), would impose an additional enhancement when a person is convicted of specified drug offenses involving fentanyl, including sale, possession for sale, and transportation, when the substance containing fentanyl exceeds a specified weight. The hearing on AB 2782 was canceled at the request of the author.
- AB 3171 (Soria), would increase the penalties for selling, distributing, or transporting 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 is pending hearing in the Assembly Appropriations Committee.
- 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.
- Prior Legislation:
- 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.
- 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.
- AB 1058 (Jim Patterson), of the 2023-2024 Legislative Session, was identical to this bill. AB 1058 failed passage in this committee.
- 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.
- SB 237 (Grove), of the 2023-2024 Legislative Session, was identical to this bill. SB 237 failed passage in the Senate Public Safety Committee.
- AB 1955 (Nguyen), of the 2021-2022 Legislative Session, was substantially similar to AB 701 above. AB 1955 failed passage in this committee.
- 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.
- 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.
- AB 2467 (Jim Patterson), of the 2017-2018 Legislative Session, was identical to this bill. SB 2467 failed passage in this committee.
- 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.
- 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.
- 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.
REGISTERED SUPPORT / OPPOSITION:
Support
Placer County District Attorney's Office
Oppose
ACLU California Action
California Alliance for Youth and Community Justice
California Attorneys for Criminal Justice
Californians for Safety and Justice
Californians United for A Responsible Budget
Drug Policy Alliance
Ella Baker Center for Human Rights
Friends Committee on Legislation of California
Initiate Justice
LA Defensa
Legal Services for Prisoner With Children
San Francisco Public Defender
Smart Justice California, a Project of Tides Advocacy
Team Justice
Uncommon Law
Vera Institute of Justice
Young Women's Freedom Center
Analysis Prepared by:
Andrew Ironside / PUB. S. / (916) 319-3744
Bill Author
Bill Co-Author(s):