BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
6
4
9
SB 649 (Leno)
As Amended April 17, 2013
Hearing date: April 23, 2013
Health and Safety Code
JM:mc
DRUG POSSESSION FOR PERSONAL USE
HISTORY
Source: California State NAACP; American Civil Liberties Union;
Drug Policy Alliance
Prior Legislation: SB 1506 (Leno) - failed passage on Senate
Floor
Support: California Public Defenders Association; Californians
for Safety and Justice; Friends Committee on Legislation
- California; William C. Vel�squez Institute; A New PATH
(Parents for Addiction Treatment and Healing); A New Way
of Life Re-entry Project; Aegis Medical Systems; Alpha
Project; Alternatives to Incarceration of Tulare; Amity
Foundation; Advancement Project; Broken No More;
California Church IMPACT; California Civil Rights
Coalition; California Drug Counseling, Inc.; California
Faith Action; Justice Not Jails; California Partnership;
Californians for Safety and Justice; Center for Living
and Learning; Center on Juvenile and Criminal Justice;
Central Valley Progressive; Clergy & Laity United for
Economic Justice, Los Angeles; Conference of California
State Bar Associations; Courage Campaign; Cri-Help,
Inc.; FACTS; HealthRIGHT360; Homeless Healthcare Los
Angeles; Human Rights Watch; Judge Harlan Grossman
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(ret.); Judge James Stiven (ret.); LA Community Action
Network; Labor/Community Strategy Center; Law
Enforcement Against Prohibition; Los Angeles
Metropolitan Churches; Los Angeles Regional Reentry
Partnership; National Council of La Raza; National
Employment Law Project; National Latino Evangelical
Coalition; Right on Crime; San Diego Chapter - National
Organization for the Reform of Marijuana Laws Women's
Alliance; Students for Sensible Drug Policy, Whittier
Law School Chapter; Tarzana Treatment Centers; The
Sentencing Project; Time for Change Foundation; Women's
Foundation of California; Youth Justice Coalition;
California Judges Association; Greenlining Institute;
Tarzana Treatment Centers, Inc.; California Association
of Alcohol and Drug Program Executives, Inc.; Asian Law
Caucus; California Opioid Maintenance Providers; Center
Point, Inc.; Ella Baker Center for Human Rights; Brownie
Mary Democratic Club of Riverside County; Los Angeles
County HIV & Alcohol Task Force; Advancement Project;
YWCA Pasadena Foothill Valley; East Bay Community Law
Center; Women's Council of the CA Chapter of the
National Association of Social Workers; Youth Justice
Coalition; Legal Services for Prisoners with Children;
California Attorneys for Criminal Justice; Sacramento
Homeless Organizing Committee; Center for Health Justice
Opposition:California Narcotics Officers Association; California
Police Chiefs' Association; California District
Attorneys Association; California State Sheriffs'
Association
KEY ISSUE
SHOULD POSSESSION FOR PERSONAL USE OF SPECIFIED CONTROLLED
SUBSTANCES BE AN ALTERNATE FELONY-MISDEMEANOR ("WOBBLER")?
PURPOSE
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The purpose of this bill is to provide that possession for
personal use of specified controlled substances shall be an
alternate felony-misdemeanor, not a straight felony.
Existing law classifies controlled substances in five
schedules, generally according to their danger and potential
for abuse. (Health & Saf. Code �� 11054-11058.)
Existing law provides penalties for sale, possession for sale or
distribution, sale or distribution, and manufacturing of
controlled substances. (Health & Saf. Code �� 11350-11401.)
Existing law , with numerous exceptions, includes the following
penalties for drug offenses:
Heroin, cocaine and other specified drugs (section references
are to the Health and Safety Code):
� � 11350 possession - felony -
prison term of 16 months, 2 years or 3 years<1>;
� � 11351 possession for sale or distribution -
felony - prison for 2, 3 or 4 years;
� � 11351.5 possession of cocaine base
(crack) for sale - felony - prison for 3, 4, 5
years; and
� � 11352 sale or distribution -
felony term of 3, 6 or 9 year term.
Methamphetamine and other specified drugs:
� � 11377 possession - alternate
felony-misdemeanor;
� � 11378 possession for sale or
distribution - felony; and
� � 11379 sale or distribution -
---------------------
<1> Hereinafter, a description of a crime as a "felony,"
without an additional explanation or description of the
applicable sentence, means that the crime is punishable by
imprisonment for 16 months, 2 years or 3 years.
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felony term of 2, 3 or 4 years.
Marijuana:
� � 11357 possession of under an
ounce is an infraction;
� � 11357 possession of hashish -
alternate felony-misdemeanor;
� � 11358 cultivation or processing
- felony;
� � 11359 possession for sale -
felony; and
� � 11360 sale or distribution -
felon term of 2, 3 or 4 years.
Existing law provides that being under the influence of a
specified controlled substance is a misdemeanor. (Health & Saf.
Code � 11550.)
Existing Law - Proposition 36 (Nov. 2000 election), the
Substance Abuse Treatment and Crime Prevention Act of 2000
(SACPA) - requires non-violent drug possession offenders to be
offered drug treatment on probation, which shall not include
incarceration as a condition of probation. (Pen. Code ��
1210.1.)
Existing law provides that non-violent drug possession offenses
include:
� Unlawful use, possession for personal use, or
transportation for personal use of a controlled substance.
� Being under the influence of a controlled substance.
(Health and Saf. Code � 11550.)
� SACPA eligibility is not affected by the classification
of the underlying drug possession offense as a felony or
misdemeanor. The controlling factor is that the drug is a
controlled substance. (Pen. Code � 1210.)
Existing law requires persons who have been convicted of one of
a list of numerous drug and drug-related crimes, including
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possession, possession for sale and sale of various controlled
substances to register with the local police chief or sheriff,
as specified. The registration requirement does not apply to a
person convicted of misdemeanor possession of methamphetamine
(or a specified drug such as psilocybin mushrooms). (Health &
Saf. Code
� 11590.)
This bill provides that possession for personal use of specified
controlled substances is an alternate felony-misdemeanor
(wobbler).
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy known as "ROCA" (which
stands for "Receivership/ Overcrowding Crisis Aggravation"), the
Committee held measures which created a new felony, expanded the
scope or penalty of an existing felony, or otherwise increased
the application of a felony in a manner which could exacerbate
the prison overcrowding crisis. Under these principles, ROCA
was applied as a content-neutral, provisional measure necessary
to ensure that the Legislature did not erode progress towards
reducing prison overcrowding by passing legislation which would
increase the prison population. ROCA necessitated many hard and
difficult decisions for the Committee.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
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federal court order issued by the Three-Judge Court three years
earlier to reduce the state's prison population to 137.5 percent
of design capacity. The State submitted in part that the, ". .
. population in the State's 33 prisons has been reduced by over
24,000 inmates since October 2011 when public safety realignment
went into effect, by more than 36,000 inmates compared to the
2008 population . . . , and by nearly 42,000 inmates since 2006
. . . ." Plaintiffs, who opposed the state's motion, argue in
part that, "California prisons, which currently average 150% of
capacity, and reach as high as 185% of capacity at one prison,
continue to deliver health care that is constitutionally
deficient." In an order dated January 29, 2013, the federal
court granted the state a six-month extension to achieve the
137.5 % prisoner population cap by December 31st of this year.
In an order dated April 11, 2013, the Three-Judge Court denied
the state's motions, and ordered the state of California to
"immediately take all steps necessary to comply with this
Court's . . . Order . . . requiring defendants to reduce overall
prison population to 137.5% design capacity by December 31,
2013."
The ongoing litigation indicates that prison capacity and
related issues concerning conditions of confinement remain
unresolved. However, in light of the real gains in reducing the
prison population that have been made, although even greater
reductions are required by the court, the Committee will review
each ROCA bill with more flexible consideration. The following
questions will inform this consideration:
whether a measure erodes realignment;
whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
whether a bill corrects a constitutional infirmity or
legislative drafting error;
whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and
whether a bill addresses a major area of public safety
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or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
1. Need for This Bill
According to the author:
SB 649 will support reentry and reduce recidivism.
Those convicted of a misdemeanor will be spared the
lifelong barriers that follow a felony conviction,
including obstacles to housing, employment, and even
public support. Those convicted of a felony will be
able to ask a court to reduce the conviction on their
record to a misdemeanor after they have successfully
completed probation.
If the reduction is granted, a prospective employer or
landlord will see the original conviction but also
that a court had reduced the conviction to a
misdemeanor following successful completion of
probation. This signals rehabilitation to an employer
and can increase a person's employment prospects.
Allowing those committed to successful reentry an
opportunity at a meaningful second chance both
incentivizes positive behavior while under criminal
justice supervision and supports people in achieving
self-reliance.
SB 649 will reduce disproportionate impact. Despite
similar levels of drug use across racial and ethnic
lines, people of color are vastly disproportionately
arrested, prosecuted and incarcerated for drug
offenses. SB 649 will have a tremendous positive
impact for families and communities of color.
SB 649 is supported by public opinion. In 2012,
Tulchin Research found that 75% of Californians
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surveyed favor alternatives to incarceration for
non-violent offenses; 62% support revising the penalty
for low-level drug possession to a misdemeanor.
2. Alternate Felony-Misdemeanors - "Wobblers"
Penal Code section 17 describes an alternate felony-misdemeanor,
or "wobbler" offense. A wobbler can either be a felony or a
misdemeanor, depending on how the crime is charged by the
prosecutor and how the court imposes sentence. If the
prosecutor files a complaint charging the crime as a felony, a
court can deem the crime to be a misdemeanor until the
prosecutor has filed the "information" - the formal document
charging a defendant in superior court with a felony. An
information is filed after a magistrate in a preliminary hearing
finds probable cause that the defendant committed the charged
crime. Once the information has been filed, a wobbler charged
as a felony remains a felony throughout the trial process until
sentencing, or unless a plea bargain has been made.
Wobblers give prosecutors and courts wide discretion and
flexibility in charging and sentencing a defendant. The
prosecutor and the court can consider the facts of the charged
crime, the defendant's record and the defendant's attitude as
these matters are developed through the process. The prosecutor
can offer the defendant a plea bargain for specific felony
resolution, such as probation, or for a misdemeanor, or the case
can proceed to trial.
If the case is not resolved through a plea bargain, the
defendant is tried for a felony. The jury does not know that
the offense is a wobbler and does not have the option to find
the defendant guilty of a misdemeanor. If the defendant is
convicted, the court then finally determines whether the offense
is a felony or a misdemeanor. If the court imposes a felony
sentence, the offense remains a felony. If the court deems the
offense to be a misdemeanor or imposes a misdemeanor sentence,
the crime is a misdemeanor for all purposes. The court can also
place the defendant on felony probation, but without imposing a
felony sentence, and determine at a later time that the offense
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is a misdemeanor.
The appellate court in People v. Trausch (1995) 36 Cal. App. 4th
1239, 1246, succinctly explained the nature of wobblers from the
perspective of the trial court:
We conclude that section 17 is sui generis.<2> It
specifically leaves the determination of the nature of
the conviction to the discretion of the judge to be
determined at sentencing. It applies only to
"wobblers" and to no other crimes. It also provides
that once the court has imposed a misdemeanor
sentence, the offense becomes a misdemeanor "for all
purposes."
3. Simple Possession of Methamphetamine: Felony and Misdemeanor
Prosecution Rates in California
The three most widely-known drugs of abuse are cocaine, heroin
and methamphetamine. Simple possession of heroin or cocaine is
a felony, while simple possession of methamphetamine is a
wobbler. A prosecutor thus has discretion to charge simple
possession of methamphetamine as a misdemeanor or a felony under
Health and Safety Code Section 11377, subdivision (a).
Prosecutors have told Committee staff that they very often
charge simple methamphetamine possession as misdemeanor.
However, available data indicates that prosecutors have widely
varying methamphetamine possession charging practices, including
some prosecutors who never charge the offense as a misdemeanor.
The Stanford University Public Policy Practicum published a
study in 2010 on wobblers<3> called "Wobblers and Criminal
Justice in California, a Study in Prosecutorial Discretion."<4>
The authors chose simple possession of methamphetamine because
it comprises "over eleven percent of all charged cases in
---------------------------
<2> Of its own nature - one of a kind.
<3>
http://ips.stanford.edu/sites/default/files/shared/DA%20Discretio
n%20Final%20Report.pdf
<4> Hereinafter - Stan. Wobbler Study
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California in 2007, and because charging variation across
counties was the greatest for this crime." (Stan. Wobbler
Study, p. 8.)<5>
Seven district attorneys explained their charging discretion.
The Ventura County District Attorney stated that it was never
appropriate to charge methamphetamine possession as a
misdemeanor. The other prosecutors "generally consider the same
three case-related factors - quantity of drug, prior criminal
record and existence of multiple charges." (Stan. Wobbler
Study, p. 14.) However, the data establishes that prosecutors
in each county apply these factors very differently.
Statewide, 18% of methamphetamine cases were charged as
misdemeanors. However, the statewide average certainly does not
truly reflect prosecutorial practice in each of the 58 counties.
Charging rates for misdemeanor methamphetamine prosecutions
vary widely, ranging from 0% in Fresno and Stanislaus Counties
to 50% in San Francisco and Contra Costa Counties.
Representative data from the study is set out below:
----------------------------------------------------
|County |11377 (a) |Percentage of |
| |prosecutions |11377 (a) |
| | |charges filed as |
| | |misdemeanor |
|----------------+-----------------+-----------------|
|All Counties |29,341 |18% |
|----------------+-----------------+-----------------|
|Alameda |985 |11% |
|----------------+-----------------+-----------------|
|Butte |308 |4% |
|----------------+-----------------+-----------------|
---------------------------
<5> Health and Safety Code Section 11377 includes drugs other
than methamphetamine, such as psilocybin
mushrooms. However, the great majority of prosecutions under
that section involve methamphetamine. Most of the examples
cited in the study involved methamphetamine. (Stan. Wobbler
Study, pp. 17-18, 22. )
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|Contra Costa |413 |50% |
|----------------+-----------------+-----------------|
|Fresno |1,249 |0% |
|----------------+-----------------+-----------------|
|Kern |1,695 |1% |
|----------------+-----------------+-----------------|
|Los Angeles |3,686 |33% |
|----------------+-----------------+-----------------|
|Orange |4,472 |24% |
|----------------+-----------------+-----------------|
|San Diego |824 |25% |
|----------------+-----------------+-----------------|
|San Francisco |210 |50% |
|----------------+-----------------+-----------------|
|Santa Clara |2,123 |20% |
|----------------+-----------------+-----------------|
|Stanislaus |567 |0% |
|----------------+-----------------+-----------------|
|Sutter |108 |40% |
|----------------+-----------------+-----------------|
|Ventura |406 |2% |
|----------------+-----------------+-----------------|
|Yolo |107 |4% |
----------------------------------------------------
DO THE DIFFERENCES AMONG COUNTIES IN CHARGING PRACTICES FOR
POSSESSION OF METHAMPHETAMINE INDICATE THAT MAKING SIMPLE
POSSESSION OF DRUGS SUCH AS COCAINE AN ALTERNATE
FELONY-MISDEMEANOR WOULD ALLOW PROSECUTORS AND COURTS TO
EXERCISE WIDE DISCRETION, THUS REFLECTING THE ATTITUDES OF THE
COMMUNITY AND THE NATURE OF THE OFFENSE AND THE RECORD AND
ATTITUDE OF THE DEFENDANT?
4. Substantially Disproportionate Prosecution and Incarceration
of African Americans and Latinos Relative to Drug Use and
Commerce
Rates of Drug Use by Race and Ethnicity
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Blacks, whites and Latinos use drugs at similar rates, with
Latinos usage the lowest of the three. Asians use illicit drugs
at a lower rate<6> than other ethnic or racial groups. The data
in the following chart is from the National Survey on Drug Use
and Health<7> published by United States Department of Health
and Human Services (DHHS), including the most recent available
data from 2011:
-------------------------------------------------------------------
|YEAR |Rate of Drug |Rate of Drug |Rate of Drug |
| |Use - Whites |Use - Blacks |Use - Latinos |
|----------------+----------------+----------------+----------------|
|2002 |8.5% |9.7 % |7.2% |
|----------------+----------------+----------------+----------------|
|2003 |8.3% |8.7% |8.0% |
|----------------+----------------+----------------+----------------|
|2004 |8.1% |8.7% |7.2% |
|----------------+----------------+----------------+----------------|
|2005 |8.1% |9.7% |7.6% |
|----------------+----------------+----------------+----------------|
|2006 |8.5% |9.8% |6.9% |
|----------------+----------------+----------------+----------------|
|2007 |8.2% |9.5% |6.6% |
|----------------+----------------+----------------+----------------|
|2008 |8.2% |10.1% |6.2% |
|----------------+----------------+----------------+----------------|
|2009 |8.8% |9.6% |7.9% |
|----------------+----------------+----------------+----------------|
|2010 |9.1% |10.7% |8.1% |
|----------------+----------------+----------------+----------------|
|2011 |8.7 |10% |8.4% |
---------------------------
<6> Among Asians, the percentage using illicit drugs in the past
month was 3.5 percent in 2002, 3.8 percent in 2003, 3.1 percent
in both 2004 and 2005, 3.6 percent in 2006, 4.2 percent in 2007,
3.6 percent in 2008, 3.7 percent in 2009, 3.5 percent in 2010
and 3.8 percent in 2011.
<7> Overall drug use in 2011 fell to 8.7 percent from 8.9
percent in 2010
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-------------------------------------------------------------------
Incarceration Rates in Drug Offenses by Race and Ethnicity
(White, Black and Latino Defendants)
According to a 1999-2005 Sentencing Project Study,<8> African
Americans are imprisoned for felony drug crimes at a rate five
times greater than their proportion of the population. Whites
are incarcerated for felony drug crimes at rate that is one
third or one quarter their proportion of the population.
-------------------------------------------------------------------
|YEAR |Whites - |Blacks - |Latinos - |
| |Percentage of |Percentage of |Percentage of |
| |State Prison |State Prison |State Prison |
| |Drug Crime |Drug Crime |Drug Crime |
| |Populations |Population |Population |
|----------------+----------------+----------------+----------------|
|1999 |20.2% |57.6% |20.7% |
|----------------+----------------+----------------+----------------|
|2000 |23.2% |57.9% |17.2% |
|----------------+----------------+----------------+----------------|
|2001 |23.3% |56.8% |19.1% |
|----------------+----------------+----------------+----------------|
|2002 |24.3% |47.5% |23.3% |
|----------------+----------------+----------------+----------------|
|2003 |25.9% |53.0% |20.0% |
|----------------+----------------+----------------+----------------|
|2004 |26.4% |45.1% |20.8% |
|----------------+----------------+----------------+----------------|
|2005 |28.5% |44.8% |20.2% |
-------------------------------------------------------------------
These data must be viewed in light of the proportion of whites,
blacks and Latinos in the population. According to the United
States Census:
-----------------------------------------------------------------
|All whites, |Non-Hispanic |African |Latino/Hispanic |
---------------------------
<8> http://sentencingproject.org/doc/dp_raceanddrugs.pdf
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|including |whites |Americans | |
|Hispanics of | | | |
|European | | | |
|origin | | | |
|--------------+----------------+---------------+-----------------|
|72.4% |63.7% |12.6% |16.3% |
| | | | |
-----------------------------------------------------------------
In 2000, Human Rights Watch researchers found that through 1996
African Americans were 13 times more times more likely to be
imprisoned for drug crimes than whites.<9> The Sentencing
Project study indicates that that disparity has been reduced
somewhat in recent years, although the disparity is still
striking. These disproportionate prosecution rates exist
despite the fact that African Americans and whites use drugs in
roughly equivalent proportions. Other studies have reported
that white youth sell drugs at a much higher rate than African
American youth.
5. Drug Use and Commerce by College Students and Adolescents,
Analyzed by Race and Ethnicity; Racial Disparities in
Juvenile Drug Prosecutions
In 2007, the National Center on Addiction and Substance Abuse at
Columbia University published a study of drug and alcohol use by
college students.<10> The study showed substantially higher use
of drugs by whites than African Americans. For example, white
students were twice as likely to illicitly use prescription
drugs, marijuana and MDMA (eecstasy) than African American
students. Students at traditionally Black colleges had
particularly low drug use rates.
The 2011 National Institute of Health (NIH) study of adolescent
---------------------------
<9> http://www.hrw.org/reports/2000/usa/
<10>
http://www.casacolumbia.org/articlefiles/380-Wasting%20the%20Best
%20and%20the%20Brightest.pdf
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drug use<11> found that "African American students have
substantially lower rates of use of most ? drugs than do whites
at all three grade levels [10th-12th grades]." (Monitoring the
Future, National Results on Adolescent Drug Use, Johnston, et
al., NIH, 2012, p. 45.)
Despite the fact that white adolescents use drugs at much higher
rates than minority adolescents, the United States Department of
Justice Office of Juvenile Justice and Delinquency Programs
(OJJDP) found<12> that in 2006 that "juvenile arrests
disproportionately involved minorities." African American
minors were arrested for drug offenses (30% of all drug arrests)
at a rate approximately 3 times their proportion of the
population. (Juv. Justice Bulletin, Nov. 2008, U.S. DOJ, OJJDP,
p. 10.)
Another study published in the American Journal of Alcohol and
Drug Abuse in March of 2010 analyzed data from the National
Survey on Drug Use and Health. According to a summary<13>
published by NIH, the study found that white and African
American youth engaged in drug commerce at equivalent rates.
However, white youth used and sold a wide range of drugs.
African American youth were more likely to use and sell
marijuana. White youth who were engaged in drug commerce were
also likely to be "entrenched" users of drugs such as cocaine.
The most recent drug trend statistics from the National
Institute on Drug Abuse - last revised in December, 2012<14> -
found that non-marijuana drug use has stayed relatively steady
in recent years. Cocaine use, however, is down:
Use of most drugs other than marijuana has not changed
appreciably over the past decade or has declined. In
2011, 6.1 million Americans aged 12 or older (or 2.4
----------------------
<11>
http://monitoringthefuture.org/pubs/monographs/mtf-overview2011.p
df
<12> https://www.ncjrs.gov/pdffiles1/ojjdp/221338.pdf
<13> http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2871399/
<14>
http://www.drugabuse.gov/publications/drugfacts/nationwide-trends
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percent) had used psycho-therapeutic prescription
drugs nonmedically (without a prescription or in a
manner or for a purpose not prescribed) in the past
month-a decrease from 2010. And 972,000 Americans
(0.4 percent) had used hallucinogens (a category that
includes Ecstasy and LSD) in the past month-a decline
from 2010.
Cocaine use has gone down in the last few years; from
2006 to 2011, the number of current users aged 12 or
older dropped from 2.4 million to 1.4 million.
Methamphetamine use has also dropped, from 731,000
current users in 2006 to 439,000 in 2011.
6. Felony Drug Possession and Misdemeanor Drug Possession States:
Comparison of Drug Use and Drug Treatment Rates
President Nixon declared a war on drugs in1971. After that
declaration, drug penalties have generally increased.
California adopted the federal controlled schedules and set
penalties based on the federal schedules in 1972. Nixon
established the Drug Enforcement Administration in 1973.
President Reagan signed legislation establishing mandatory
minimums for drug crimes, including much higher penalties for
simple possession of "crack cocaine" than powdered cocaine, in
1986. (The five year minimum sentence for simple possession of
five grams of crack cocaine was only recently repealed by Public
Law 111-220.) California enacted higher penalties for
possession of cocaine base for sale in 1986. President George
H.W. Bush appointed the first drug czar in 1989. Inherent in
these policies is a belief that relatively severe penalties for
drug crimes, including drug possession, deter people from using
or selling drugs. (Timeline, America's War on Drugs, NPR, April
2, 2007<15>; Health & Saf. Code �� 11054-11058; 11350-11383.7,
11351.5.)
Similarly, in discussions on legislation in 2012 that would have
---------------------------
---------------------------
<15>
http://www.npr.org/templates/story/story.php?storyId=9252490
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made simple drug possession a misdemeanor,<16> law enforcement
representatives and prosecutors argued that the threat of felony
penalties is necessary to induce drug users to stop taking drugs
and to engage in treatment. In particular, it was argued that
drug possession defendants will refuse Proposition 36 treatment
on probation unless the consequence of that decision is a
felony.
The long history of steady drug use in the face of punitive drug
laws raise issues about whether or not felony penalties actually
deter drug use and induce people to participate in treatment.
The author has provided the Committee with studies comparing
rates of drug use and drug treatment in states that treat simple
drug possession as a felony with states that treat simple drug
possession as a misdemeanor. The data indicate that drug use
rates are slightly lower in states in which drug possession is a
misdemeanor than in states where drug possession is a felony.
In particular, misdemeanor drug possession states had an average
illicit drug use rate in the population of 3.55%, excluding
marijuana use. Felony possession states had an average rate of
use of 3.61%. Among felony states with more severe penalties
than California, the average rate rose slightly to 3.62%.<17>
Comparisons of Misdemeanor and Felony Drug Possession States -
Drug Use Rates as a Percentage of the Population
-----------------------------------------------------------------
|Rate of Drug Use in |Rate of Drug Use in |California - Mostly |
|Felony Possession |Misdemeanor |Felony Possession, |
|States |Possession States |Wobbler |
| | |Methamphetamine |
|---------------------+---------------------+---------------------|
|3.61% |3.55% |3.50 % |
-----------------------------------------------------------------
Making drug possession a misdemeanor does not appear to reduce
drug treatment participation. Treatment rates in misdemeanor
---------------------------
<16> SB 1506 (Leno) 2012, failed passage on the Senate Floor.
<17> http://www.samhsa.gov/data/2k5State/AppB.htm#TabB.6
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states are significantly higher than in felony states. Further,
among the 13 states in which drug possession is a
misdemeanor<18>, six are among those with the highest rate of
drug treatment. These results were not uniform, as some states
with misdemeanor penalties had relatively low rates of
treatment, such as Wisconsin with 162 in treatment per 100,000
people. However, the misdemeanor possession state of New York
had a very high treatment rate of 995 per 100,000. Further, a
number of felony possession states - Nebraska Alabama and
Arizona for example - had treatment rates below 300 per 100,000,
and others, such as North Dakota, Texas and Florida, had
treatment rates well below 200 per 100,000.
Drug Treatment Rates per 100,000 people in Felony and
Misdemeanor Possession States
-----------------------------------------------------------------
|Misdemeanor States |Felony States - |National Average - |
|-Treatment Rates |Treatment Rates |Treatment Rates |
|---------------------+---------------------+---------------------|
|513 per 100,000 |432 per 100,000 |434 per 100,000 |
-----------------------------------------------------------------
7. Addiction and Drug Dependence Treatment Research
The National Institute on Drug Abuse has reviewed much recent
research about the science of drug addiction, dependence and
treatment. The NIDA website states: "Recent scientific
advances have revolutionized our understanding of drug abuse and
addiction, which is now recognized as a chronic relapsing brain
disease."<19>
---------------------------
<18> The misdemeanor states are Delaware, Iowa, Maine,
Massachusetts, Mississippi, New York, Pennsylvania, South
Carolina, Tennessee, Vermont, West Virginia, Wisconsin, Wyoming
and the District of Columbia.
<19>
http://www.drugabuse.gov/publications/science-addiction/drug-abus
e-addiction
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NIDA has also conducted research into the science of brain
chemistry and addiction. Very new research indicates that
treatments focusing on the prefrontal cortex of the brain could
interfere with or stop compulsive drug use, use that continues
despite negative consequences and the sincere desire to quit:
Could drug addiction treatment ?. be as simple as an
on/off switch in the brain? A study<20> in rats has
found that stimulating a key part of the brain reduces
compulsive cocaine-seeking and suggests the
possibility of changing addictive behavior generally.
"This exciting study offers a new direction of
research for the treatment of cocaine and possibly
other addictions," said NIDA Director Dr. Nora D.
Volkow. "We already knew, mainly from human brain
imaging studies, that deficits in the prefrontal
cortex are involved in drug addiction. Now that we
have learned how fundamental these deficits are, we
feel more confident? about the therapeutic promise of
targeting that part of the brain."
Compulsive drug-taking, despite negative health and
social consequences, has been the most difficult
challenge in human drug addiction. NIDA researchers
used an animal model of cocaine addiction, in which
some rats exhibited addictive behavior by pushing
levers to get cocaine even when followed by a mild
electric shock to the foot. Other rats did not
exhibit addictive responses. The ?
----------------------
<20> The study was published in Nature and done by
scientists at the Intramural Research Program of the
National Institute on Drug Abuse (NIDA) and the University
of California, San Francisco.
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scientists compared nerve cell firing ? [in the] the
prefrontal cortex [of both groups of rats]. [C]ocaine
produced greater functional brain deficits in the
addicted rats. [The scientists then stimulated the
brain cells of both the sets of rats and reversed the
behavior of the rats.]
This is the first study to show a cause-and-effect
relationship between cocaine-induced brain deficits in
the prefrontal cortex and compulsive cocaine-seeking,"
said NIDA's Dr. Billy Chen, first author of the study.
"[O]ur results can be immediately translated to
clinical research ? with humans, and we are planning
clinical trials to stimulate this brain region using
non-invasive methods," said Dr. Antonello Bonci, NIDA
scientific director and senior author of the study.
"By targeting a specific portion of the prefrontal
cortex, our hope is to reduce compulsive
cocaine-seeking and craving in patients.<21>
8. Underfunded Drug Treatment in the Criminal Justice System
Under SACPA - The Substance Abuse and Crime Prevention Act of
2000 (Proposition 36 of the 2000 General Election) - defendants
who are convicted of non-violent drug possession must, with
specified exceptions, be offered treatment on probation with no
incarceration. SACPA participants can commit two drug-related
violations of probation before being excluded from the program
and sentenced for the underlying conviction.
The state Substance Abuse Treatment Trust Fund provided $60
million in start-up funds for the first year and $120 million
---------------------------
<21>
http://www.drugabuse.gov/news-events/news-releases/2013/04/nih-st
udy-sheds-light-how-to-reset-addicted-brain
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annually for five years (2001-2006).<22> Funding then steadily
declined each year until 2009, when all direct state funding for
SACPA-mandated treatment ended. Counties are still mandated,
however, to provide some sort of treatment to those eligible for
SACPA. Current alternative sources of funding relied on by
counties include federal block grants, federal Drug Medi-Cal
reimbursements, AB 109 Support Services budgets for Behavioral
Health, Cal-WORKS Social Services accounts and other local
discretionary budgets.
Nevertheless, treatment programs are underfunded and
oversubscribed. An indigent SACPA participant is likely to wait
to be admitted into a treatment program for anywhere from two
days to five months, depending upon the services a participant
requires, despite research indicating that treatment should be
started as soon as possible.<23> Additionally, programs
currently offered by counties may not meet standards for
evidence-based treatment as many counties have reported recent
reductions in the frequency of treatment, the number of client
contacts and the level of supervision.
Implementation of the Affordable Care Act will likely provide
additional funding for SACPA and other court-based treatment
programs. On January 1, 2014, California expands its Medi-Cal
coverage to lawfully-present childless adults with income up to
138% of the Federal Poverty Level, with the federal government
covering all coverage costs for the first three years,
eventually decreasing coverage to 90%. As a result, a large
share of drug offenders will become eligible for subsidized SUD
treatment and next, year, the federal government will cover 100%
of treatment costs if the offender earns between 100% and 138%
of the Federal Poverty level (between $11,170 and $15, 415 for a
family size of 1). If he or she earns less than 100% of the
federal poverty level, the federal government only covers 50% of
---------------------------
<22> Department of Alcohol and Drug Programs, Substance Abuse
and Crime Prevention Act of 2000, Fact Sheet,
http://www.adp.state.ca.us/SACPA/prop36.shtml )
<23> David Bornstein, For Drug Users, a Swift Response is the
Best Medicine, New York Times, January 8, 2013
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the costs, the current rate. County health officials are
exploring these funding sources.
As discussed in Comment # 7, recent research strongly indicates
or establishes that addiction and compulsive drug abuse are
chronic, relapsing brain diseases. The brains of addicts are
altered by use of the addicting substance such that addicts seek
out drugs despite serious negative consequences. Many addicts
may be genetically predisposed to addiction and certain
environmental factors may substantially affect additive
behavior. By the nature of their disease, addicts are
particularly likely to relapse.<24> Sparse treatment funding,
limited availability and a lack of evidence-based standards,
combined with the inherent tendency of addicts and chronic drug
abusers to relapse, limits the effectiveness of SACPA treatment.
Although SACPA operates with great limitations, studies by the
UCLA Integrated Substance Abuse Program (ISAP) establish that
taxpayers saved approximately two dollars and fifty cents for
each dollar invested in SACPA.<25> Over thirty months, looking
exclusively at offenders entering SACPA during its first year,
this cost analysis represents a savings to state and local
government of $173.3 million. Those offenders who successfully
complete treatment save taxpayers nearly four dollars for each
dollar invested. ISAP researchers predict substantially higher
savings if the program was adequately funded and operated. "The
cost savings are dramatic," ISAP researchers explained, "but
with increased system accountability measures and
improved offender management, as well as incentives to community
programs for better treatment entry, retention, and completion
rates, they could rise even higher." Additional measures noted
by ISAP researchers include improvements in service coordination
within counties, improvements to continuity of care, better
---------------------------
<24>
http://www.drugabuse.gov/publications/science-addiction/drug-abus
e-addiction
<25> Longshore, Hawken, Urada and Anglin, Evaluation of SACPA,
Cost Analysis, UCLA Integrated Substance Abuse Program, March
13, 2006,
http://www.uclaisap.org/prop36/documents/SACPA_COSTANALYSIS.pdf
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participant screening and attention to special populations of
offenders such as minorities and those with comorbid disorders.
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