Existing law imposes an additional and consecutive 3- or 5-year term in the state prison on a person who personally inflicts great bodily injury on a person in the commission of a felony, as specified.

This bill bill, until January 1, 2029, would state that, for purposes of the this enhancement, a person inflicts great bodily injury when they sell, furnish, administer, or give away a controlled substance fentanyl or an analog of fentanyl and the person to whom the substance was sold, furnished, administered, or given suffers a significant or substantial physical injury from using the substance. The bill would specify that this provision does not apply to juvenile offenders. By expanding the scope of an existing 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.

Existing law imposes an additional and consecutive 3- or 5-year term in the state prison on a person who personally inflicts great bodily injury on a person in the commission of a felony, as specified.

This bill would state that, for purposes of the enhancement, a person inflicts great bodily injury when they sell, furnish, administer, or give away a controlled substance and the person to whom the substance was sold, furnished, administered, or given suffers a significant or substantial physical injury from using the substance. By expanding the scope of an existing 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 27, 2023

Counsel: Andrew Ironside

ASSEMBLY COMMITTEE ON

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:

Author:() – As Ver:

SUMMARY:

Applies the “great bodily injury” enhancement to any person who sells, furnishes, administers, or gives away fentanyl or an analog of fentanyl when the person to whom the fentanyl was sold, furnished, administered or given suffers a significant or substantial physical injury from using the substance.

1. Provides that a person who sells, furnishes, administers, or gives away fentanyl or analog of fentanyl personally inflicts great bodily injury when the person to whom the substance was sold, furnished, administered, or given suffers a significant or substantial physical injury from using the substance.
   
2. Provides that the enhancement does not apply to juvenile offenders.
   
3. Provides a sunset date of January 1, 2029.

EXISTING LAW:

1. Provides that a person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony, or attempted commission of a felony, shall be punished by an additional and consecutive term of imprisonment in state prison for three years. (Pen. Code, § 12022.7, subd. (a).)
   
2. Requires that a person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony, or attempted commission of a felony, which causes the victim to become comatose due to brain injury or to suffer paralysis of a permanent nature to be punished by an additional and consecutive term of imprisonment in the state prison for five years. (Pen. Code, § 12022.7, subd. (b).)
   
3. Requires that a person who personally inflicts great bodily injury on a person who is 70 years of age or older, other than an accomplice, in the commission of a felony or attempted felony to be punished by an additional and consecutive term of imprisonment in state prison for five years. (Pen. Code, § 12022.7, subd. (c).)
   
4. Requires that a person who personally inflicts great bodily injury on a child under the age of five years in the commission of a felony or attempted felony to be punished by an additional and consecutive term of imprisonment in the state prison for four, five, or six years. (Pen. Code, § 12022.7, subd. (d).)
   
5. Requires a person personally inflicts great bodily injury under the circumstances involving domestic violence in the commission of a felony or attempted felony to be punished by an additional and consecutive term of imprisonment in the state prison for three, four, or five years. (Pen. Code, § 12022.7, subd. (e).)
   
6. States “great bodily injury” means a significant or substantial injury. (Pen. Code, § 12022.7, subd. (f).)
   
7. Provides that the great bodily injury enhancement does not apply to murder, manslaughter, arson, or any offense where great bodily injury is an element of the offense. (Pen. Code. § 12022.7, subd. (g).)
   
8. Provides that a person who possesses fentanyl for sale, or purchases fentanyl for purposes of sale, shall be punished by imprisonment in county jail for two, three, or four years. (Health & Saf. Code, § 11351.)
   
9. Provides that a person who sells or transports specified controlled substances, including fentanyl, or offers to do so, unless upon a written prescription, as specified, shall be punished by imprisonment in county jail for three, four, or five years. (Health & Saf. Code, § 11352, subd. (a).)
   
10. Provides that a person who transports specified controlled substances, including fentanyl, within this state from one county to another noncontiguous county shall be punished by imprisonment in county jail for three, six, or nine years. (Health & Saf. Code, § 11352, subd. (b).)

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, “The effects of fentanyl are devastating. The data shows us that action to address this epidemic is critically overdue. We must take action at all levels of government to protect our communities from this deadly substance. This bill would help California hold drug dealers accountable for the destruction and trauma they cause by knowingly distributing fentanyl. While our efforts could never repair the loss of life, AB 367 recognizes that injury to human life or death deserves – at the minimum – a 3-year sentence enhancement.”
   
2. People v. Ollo (2021) 11 Cal. 5th 682: This bill seeks to overturn part of the California Supreme Court’s decision in People v. Ollo (2021) 11 Cal.5th 682. In that case, the 18-year-old defendant supplied his 16-year-old girlfriend with a white powder he thought was cocaine. (Id. at p. 685.) It was not cocaine; it was fentanyl. (Ibid.) Using an I.D card, his girlfriend voluntarily prepared and consumed the powder and fell asleep. (Ibid.) Awaking the next morning, he found his girlfriend unresponsive. (Ibid.) She had died of an overdose. (Ibid.)
   
   During trial, the prosecutor argued that the defendant personally inflicted great bodily injury (GBI) on his girlfriend. (Ollo, supra, 11 Cal.5th at p. 685.) The defendant moved to dismiss the allegation, which the trial court denied. (Ibid.) The defendant argued that the trial court should permit him to argue that the facts did not support the GBI enhancement allegation. The trial court rejected his argument. (Ibid.) The defendant was sentenced to nine years in prison plus the three-year GBI enhancement. (Id. at p. 686.) On appeal, he argued that the trial court erred by prohibiting him from arguing that he did not personally inflict GBI. The appellate court affirmed. (Ibid.)
   
   The California Supreme Court was asked to decide “whether a defendant who furnishes a controlled substance ‘personally inflicts’ great bodily injury as a matter of law whenever a person to whom he or she provides drugs dies or suffers other great bodily injury from using drugs” under subdivision (a) of Penal Code section 12022.7. (Ollo, supra, 11 Cal.5th at p. 687.) The court observed that precedent demonstrates that the purpose of the great bodily injury enhancement “focus[es] on aspects of the criminal act that are not always present,” that the intent of the enhancement is to punish “gratuitous harm not inherent in the crime itself.” (Id. at p. 691 [internal citations omitted] [emphasis in original].) According to the court,
   

In determining whether the personal infliction requirement is satisfied, the key inquiry is whether the furnishing was akin to administering. When a defendant administers the drugs without the victim’s consent, the defendant has participated in the injury-causing act and thus may be held liable for personal infliction of the overdose. Where a defendant simply provides the drugs to a user who subsequently overdoses, the defendant facilitates but does not personally inflict the overdose. This distinction recognizes the importance of the voluntariness of a victim’s ingestion in the determination of whether a defendant personally inflicts great bodily injury in the drug furnishing context. To be eligible for the great bodily injury enhancement, a defendant’s participation in the act of ingestion must occur in circumstances in which the victim is not an independent “intermediary” capable of breaking the “personal[]” nexus between the defendant and the overdose injury. Whereas a victim with full capacity who voluntarily chooses to ingest a controlled substance is an independent intermediary, a victim who ingests drugs as a result of coercion or with diminished capacity is not.

(Id. at pp. 690-691 [internal citations omitted].) The court emphasized that the question hinges on “the facts of the particular case rather than the charged offense.” A defendant could furnish drugs in “a particularly way” that would “undermine[] the victim’s voluntary choice as to whether to consume the drug” causing “the victim to use the drug in a more dangerous manner than the mere act of selling drugs on the street.” (Id. at pp. 688, 691-692.) The court observed, for example, that a defendant who supplies an individual with pills over the course of a night, while observing that individual become increasingly intoxicated, may be subject to the GBI enhancement whereas a defendant who supplied heroin but “played no part in the individual’s ingestion of the drugs” likely is not. (Id. at pp. 689-90.) The court concluded, “The trial court’s statement of law contravenes our reasoning that the voluntariness of a victim’s ingestion is a key consideration in the determination of whether a defendant personally inflicts great bodily injury in the drug furnishing context.” (Id. at p. 693.)

This bill seeks to overrule the California Supreme Court’s unanimous decision in People v. Ollo as applied to fentanyl. It would make the GBI enhancement automatic as a matter of law anytime a person is convicted of selling, furnishing, administering, or giving away fentanyl or analog of fentanyl if a person dies of an overdose after consuming it. This bill rejects the Supreme Court’s reasoning that application of the GBI enhancement requires an analysis of the facts of the case.

1. Harsher Sentences for Drug Trafficking Unlikely to Reduce Drug Use or Deter Criminal Conduct: This bill attempts to deter people who sell, furnish, administer, or give away fentanyl by automatically applying a three-year enhancement whenever a person dies or suffers a serious bodily injury after using it. But any claim that such measures will meaningfully reduce drug use or crime associated with the drug trade is, at best, dubious.
   
   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.)
   
   Harsher sentences for drug trafficking offenses specifically may be particularly ineffective, in part because of the nature of illicit drug markets. As the National Research Council explains:
   

For several categories of offenders, an incapacitation strategy of crime prevention can misfire because most or all of those sent to prison are rapidly replaced in the criminal networks in which they participate. Street-level drug trafficking is the paradigm case. Drug dealing is part of a complex illegal market with low barriers to entry. Net earnings are low, and probabilities of eventual arrest and imprisonment are high… Drug policy research has nonetheless shown consistently that arrested dealers are quickly replaced by new recruits….

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

(Cmte. On Causes and Consequence of High Rates of Incarceration, National Research Council, The Growth of Incarceration in the United States: Exploring Causes and Consequences (2014) p. 146. <https://nap.nationalacademies.org/catalog/18613/the-growth-of-incarceration-in-the-united-states-exploring-causes> [last visited Apr. 25, 2023].)

More recently, 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.

One study found that incarcerating street-level drug dealers fueled their replacement by younger and more violent individuals. Additional research replicated these findings through an examination of the public safety impact of California’s three strikes law from 1994, when the law was implemented, to 1998. This work found short- and long-term decreases in most types of crime, but also found that imprisoning chronic drug offenders had no impact on the drug crime rate. The authors hypothesized that incarcerating chronic drug offenders did not result in an incapacitation effect because “when one drug offender is jailed, there is another (and perhaps more than just one other) ready to 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. 2023] [internal citations omitted] [emphasis added].)

With fentanyl, the deterrent effect of increasing penalties may be questioned further because the seller often is unaware that the product is laced with fentanyl. Citing U.S. Sentencing Commission data, one analysis observed, “Low-level dealers rarely know the contents of the product in their supply chain or can predict its risk.” (Beletsky, America’s Favorite Antidote: Drug-Induced Homicide in the Age of the Overdose Crisis (2019) 4 Utah L.Rev. 833, 877.) “These contents also frequently fluctuate—often as a result of interdiction activities and other law enforcement efforts to disrupt the market, further complicating any rational decision-making.” (Ibid.)

Additionally, as the Council on Criminal Justice’s report notes, harsher punishments for drug offenses may actually do harm. 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.) Users may be less likely to call 911 when another is overdosing out of fear of criminal punishment. “The role of risk perception is critical in this area. Research demonstrates that people who use drugs…lack an accurate understanding of Good Samaritan policies… Ultimately, it is the perception of bystanders about legal risk to self or the victim that drives help-seeking behavior.” (Beletsky, supra, at p. 864; see also Dunkle, Senate Bill 44 by Sen. Tom Umberg will put more people at risk of overdosing from fentanyl, Orange Co. Register (Mar. 23, 2023) < https://www.ocregister.com/2023/03/23/senate-bill-44-by-sen-tom-umberg-will-put-more-people-at-risk-of-overdosing-from-fentanyl/> [last visited Apr. 23, 2023]; Hoban, After overdose deaths, families ask lawmakers to reduce penalties for calling 911, N.C. Health News (May 12, 2021) <https://www.northcarolinahealthnews.org/2021/05/12/after-overdose-deaths-families-want-stronger-good-samaritan-law/> [last visited Apr. 23, 2023].)

These harms may be compounded further by increasing intentional fentanyl use. “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].) Given that this bill specifically targets fentanyl, the potential negative consequences resulting from increased sentences will likely fall on fentanyl users.

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.)

Will applying the GBI enhancement to a person who sold, furnished, administered, or gave away fentanyl to person who subsequently suffers a serious injury or death from consuming the substance reduce the amount drugs on California streets? The evidence to date suggests that it will not.

1. The Scope of the Enhancement: The bill’s sponsor justifies the enhancement by distinguishing between “habitual dealers” and the persons who use drugs.
   
   First, there is no requirement under this bill that the person supplying the fentanyl be a “habitual dealer.” In fact, a person who has never made a single cent from selling any drug could be subject to the enhancement. (See People v. Ollo (2021) 11 Cal.5th 682.) The enhancement would apply to a person who uses drugs who administers or gives away fentanyl even when the deceased voluntarily used the drug knowing it was fentanyl. (See People v. Label (1974) 43 Cal.App.3d 766.) One analysis found that roughly half of the defendants in drug-induced homicide cases were the friend, family member, or a romantic partner of the person who overdosed. (Beletsky, supra, at pp. 839, 873-874.) There is little reason to believe that the application of the GBI enhancement would be any different.
   
   Second, 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]; 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 three-year enhancement effectively deter somebody already at a relatively high risk of death from illicit drug use?
   
2. Argument in Support:
   
   1. According to San Diego Mayor Todd Gloria, the bill’s sponsor: “A recent study by the Center for Disease Control (CDC) names fentanyl the deadliest drug in the United States. Fentanyl is often disguised as other synthetic opioids or drugs, then sold on the street to users who are unaware that fentanyl is a key ingredient. Users who unknowingly ingest these substances believing they are taking a less powerful drug are much more susceptible to overdose or even death. When abused, fentanyl affects the brain and nervous system and is 50 times stronger than heroin and 100 times stronger than morphine.
      
      “In the City of San Diego, ‘accidental overdose’ was the leading cause of death according to preliminary 2021 data. Of those 549 overdose deaths in San Diego, 385 individual deaths, or 70%, involved fentanyl. The problem is particularly acute in the homeless population. Accidental overdoses as a cause of death for people experiencing homelessness in the City have increased from 2017 to 2021 by 406% (32 to 162) and accidental overdoses involving fentanyl among the same population over that time period have increased an alarming 5,550% (2 to 113).
      
      “AB 367 does not add a new sentence enhancement to state law, but instead clarifies when courts may apply the provision. While existing law speaks to “great bodily injury” which could include instances when fentanyl is involved, the Supreme Court in 2021 found that the law’s requirement that the injury must be personally inflicted prohibited the sentence enhancement from applying in most cases. The Court explained that the phrase “personally inflicts” means that someone directly and physically causes something damaging or painful to be endured.
      
      “Such legal interpretation of the law absurdly absolves habitual dealers of fentanyl-laced drugs unless they physically place the drug in the users’ bodies. AB 367 is intended to clarify that existing penalties are properly enforced in circumstances involving serious bodily injury. The measure will provide justice to thousands of California families and will deter those who deal deadly drugs from continuing to do so. We know this law will provide an important tool to cities, like my own, suffering with the devasting [sic] impacts of the opioid epidemic.”
      
   2. According to the California Police Chiefs Association, “Fentanyl is now the deadliest drug circulating on the illegal drug market. According to the California Department of Public Health, statewide fentanyl deaths increased from 239 deaths in 2016 to 3,946 in 2020, or 1,551%. In California, 71% of all opioid-related deaths in 2020 were a result of fentanyl poisoning. Synthetic opioids like fentanyl account for two-thirds of the 105,000 nationwide drug-related deaths that occurred between October 2020 and October 2021.
      
      “AB 367 takes a critical step towards impacting this crisis by targeting those selling this deadly substance.”
      
3. Argument in Opposition:
   
   1. According to Initiate Justice, “Our organization understands the impact that drug use can have on the lives of users, their families, and those who’ve lost a loved one to overdose. California voters have repeatedly signaled their preference for moving away from the failed carceral policies of the past and instead treating substance use as the health crisis that it is. Reverting back to the criminal penalties of the past not only flies in the face of multiple statewide elections, but it is also proven to be bad public policy. AB 367 would result in further criminalization of mostly low-income, marginalized populations and push them further from the strategies that work.
      
      “AB 367 relies on an outdated War on Drugs mentality, one that has already had a devastating impact on communities across California. The consequences of using jails and prisons to deal with a public health issue has taken decades to even begin unraveling. This measure would set California back from more public health centered approaches. Harsher sentencing does not reduce the distribution of fentanyl, nor would it prevent overdoses; it does not reduce the supply of drugs nor the demand for them; and worse, it could discourage effective methods of dealing with the opioid crisis.
      
      “Rather than diminishing the harms of drug misuse, criminalizing people who sell and use drugs amplifies the risk of fatal overdoses and diseases, increases stigma and marginalization, and drives people away from needed treatment, health, and harm reduction services. Many of the people who will be incarcerated by this bill will be addicts themselves. A Bureau of Justice report found that 70% of people incarcerated for drug trafficking in state prisons used drugs prior to the offense. These individuals often distribute drugs, not for profit, but to support their own substance use disorder. Often, these “sellers” are not high-level members of any organized drug distribution scheme but are rather furnishing narcotics to friends and family members.
      
      “In November 2021, the Center for Disease Control and Prevention (CDC) released provisional data demonstrating that nationally drug overdose deaths rose to 100,000 in the 12th month period ending in April 2021.1 This further proof that enforcement-first approaches to drugs are not working, in fact criminalization are fueling the overdose crisis by pushing people into risky situations, isolation and making the drug supply unregulated and unsafe.
      
      “With countless lives at stake, it’s time to divest from failed intervention of the past and to look at effective approaches to reduce drug-related harms by making evidence-based treatment available on demand and to implement harm reduction policies, such as facilitating drug checking to help identify adulterated substances and getting the opioid overdose antidote naloxone in the hands of those most likely to be present when a person is suffering a drug overdose – people who use drugs and their family members and friends.
      
      “AB 367 and its imposition of harsh penalties for distribution will undermine California’s Good Samaritan law, lifesaving legislation that was passed in order to encourage people to contact emergency services in case of an overdose. The most common reason people cite for not calling 911 in the event of an overdose is fear of police involvement. Recognizing this barrier, California, along with 39 other states and the District of Columbia, passed “911 Good Samaritan” laws, which provide limited immunity from prosecution for drug-related offenses for those who seek medical assistance for an overdose victim. This public health approach to drug use, however, is greatly undermined by enforcement of drug-induced homicide statutes.”
      
   2. According to Ella Baker Center for Human Rights, “Adding a great bodily injury enhancement for the furnishing, sharing or selling of controlled substances will do nothing to address the deadly crisis facing California. For over 50 years, California and the United States has spent more money warring drugs through policing, interdiction, deportation, jails and prisons, than spent on cost-effective prevention, medical and public health responses to the use of drugs and substance use disorder. It is well past time that California lawmakers stop wasting lives and money on failed carceral policies and invest in drug treatment, harm reduction and prevention.
      
      “This bill would add an additional three or five years to a sentence for sharing, furnishing, administering, or selling a controlled substance, if the person who chose to ingest drugs suffered great bodily injury (GBI), presumably related to accidental overdose. There are other potential negative medical outcomes of self-administration of controlled substances, including soft tissue infections or endocarditis, that might be considered GBI. It is difficult to know how wide a net District Attorneys might throw given the option of enhancements. It would likely take years for courts to determine appropriate application, and there would doubtless be uneven application of the enhancements. Given the history of the drug war, it is predictable that the defendants most likely to suffer over-sentencing would be people of color, Black, Latinx and Indigenous.
      
      “The imposition of harsher penalties would be yet another impediment to calling 911 or seeking emergency medical care when a person witnesses an overdose. If any person shared drugs, furnished drugs or sold drugs, and was present during an overdose, this bill--like those that would treat overdose as a homicide--make it far less likely that a person would seek care with the urgency required to save a life. Even hesitation can result in brain injury or death.
      
      “Long sentences and enhancements are already proven to be both ineffective and expensive. An additional 3-years in prison costs the taxpayers of California an additional $338,000. The approximate per capita cost of a year in 2021 was over $112,6001. 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 $6,000.2 It would be healthier, safer and better for public safety to send an additional 17 people to methadone treatment, or 19 people to buprenorphine treatment, than to incarcerate one person for an additional year. Sending a person to prison for an additional three or five years makes no difference in drug availability. Funding a robust, voluntary drug treatment system is a far more intelligent investment.
      
      “Rather than diminishing the harms of drug misuse, criminalizing people who sell and use drugs amplifies the risk of fatal overdoses and diseases, increases stigma and marginalization, drives people away from needed treatment, health, and harm reduction services, and exacerbates racial disparities in incarceration.”
      
4. Related Legislation:
   
   1. AB 955 (Petrie-Norris), 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. AB 955 will be heard today in this committee.
      
   2. AB 675 (Soria), would add a substance containing a heroin analog, a substance containing fentanyl, and a substance containing a fentanyl analog to the list of controlled substances for which possession of those substances while armed with a loaded and operable firearm is a felony punishable in state prison by two, three, or four years. AB 675 will be heard today in this committee.
      
   3. AB 701 (Villapudua), 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. AB 701 is up for reconsideration in this committee today.
   4. SB 237 (Grove), increases the punishment for drug trafficking fentanyl. SB 237 is up for reconsideration in the Senate Public Safety Committee.
      
   5. SB 62 (J. Nguyen), would apply existing weight enhancements increasing the penalty and fine for trafficking substances containing heroin, cocaine base, and cocaine to fentanyl. SB 62 is up for reconsideration in the Senate Public Safety Committee.
      
   6. AB 18 (Joe Patterson), would require the court to advise a person convicted of specified drug offenses that they could be charged with voluntary manslaughter or murder if they manufacture or distribute controlled substances in the future and somebody dies as a result. AB 18 is up for reconsideration in this committee.
      
   7. SB 44 (Umberg), is substantially similar to AB 18 (Joe Patterson). SB 44 is up for reconsideration in the Senate Public Safety Committee.
      
5. Prior Legislation:
   
   1. AB 2366 (Jim Patterson), of the 2021-2022 Legislative Session, was substantially similar to AB 18 (Joe Patterson), of the current session. The author pulled AB 2366 before the bill’s scheduled hearing in this committee.
      
   2. SB 350 (Melendez), of the 2021-2022 Legislative Session, was substantially similar to AB 18 (Joe Patterson), of the current session. SB 350 failed passage in the Senate Public Safety Committee.
      
   3. AB 1955 (Nguyen), of the 2021-2022 Legislative Session, would have applied the existing weight enhancements which increase the penalty and fine for trafficking substances containing heroin, cocaine base, and cocaine to fentanyl. AB 1955 failed passage in this committee.
      
   4. AB 1351 (Petrie-Norris), of the 2021-2022 Legislative Session, was nearly identical AB 1955 (Nguyen). The author pulled AB 1351 before it received hearing in the Assembly Public Safety Committee.
      
   5. AB 2975 (Petrie-Norris), of the 2019-2020 Legislative Session, was nearly identical to AB 1955 (Nguyen). AB 2973 was not heard in this committee.
      
   6. AB 2405 (Patterson), of the 2017-2018 Legislative Session, would have classified carfentanil in Schedule II of the drug schedule and would have increased penalties for trafficking in carfentanil. AB 2405 failed passage in this committee.
      
   7. AB 2467 (Patterson), of the 2017-2018 Legislative Session, would have increased the punishment for specified drug crimes involving fentanyl. SB 2467 failed passage in this committee.
      
   8. AB 3105 (Waldron), of the 2017-2018 Legislative Session, would have made sale of fentanyl punishable by a term of 10 years to life in a case involving 20 grams or more of a mixture or substance containing a detectable amount of fentanyl, as defined, or 5 grams or more of a mixture or substance containing an analogue. AB 3105 failed passage in this committee.
      
   9. SB 176 (Bates), of the 2017-2018 Legislative Session, would have classified carfentanil in Schedule II and would have applied the weight enhancement to a substance containing carfentanil or fentanyl. SB 176 failed passage in the Senate Public Safety Committee.
      
   10. SB 1103 (Bates), of the 2017-2018 Legislative Session, was substantially similar to AB 1955 (Nguyen). SB 1103 failed passage in the Senate Public Safety Committee.
       
   11. SB 1323 (Bates), of the 2015-2016 Legislative Session, would have applied the weight enhancement for possession for sale, or sale, of specified drugs, to fentanyl. SB 1323 was held on the Assembly Appropriations Committee Suspense File.
       

REGISTERED SUPPORT / OPPOSITION:

Support

Mayor Todd Gloria, City of San Diego (Sponsor)
California District Attorneys Association (Co-Sponsor)
Big City Mayors
California Association of Highway Patrolmen
California Police Chiefs Association
California State Sheriffs' Association
Chino; City of
League of California Cities
Orange County District Attorney
San Diegans Against Crime
San Diego County District Attorney's Office
San Diego County Sheriff's Department
San Diego Deputy District Attorneys Association

4 Private Individuals

Oppose

Anti Recidivism Coalition
Backes; Glenn
Broken No More
California Attorneys for Criminal Justice
California for Safety and Justice
California Public Defenders Association (CPDA)
Californians for Safety and Justice
Californians United for A Responsible Budget
Care First California
Children's Defense Fund - CA
Communities United for Restorative Youth Justice (CURYJ)
Community Legal Services in East Palo Alto
Drug Policy Alliance
Ella Baker Center for Human Rights
Friends Committee on Legislation of California
Glide
Harm Reduction Institute
Initiate Justice
Initiate Justice Action
LA Defensa
Law Enforcement Action Partnership
Legal Services for Prisoners With Children
Milpa (motivating Individual Leadership for Public Advancement)
National Harm Reduction Coalition
Pacific Juvenile Defender Center
Rubicon Programs
San Francisco Public Defender
Santa Cruz Barrios Unidos INC.
Silicon Valley De-bug
Sister Warriors Freedom Coalition
The Gubbio Project
The Sidewalk Project
Treatment on Demand Coalition
Youth Forward

2 Private Individuals

Analysis Prepared by: