BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  SB 1010
                                                                  Page  1

          Date of Hearing:   July 2, 2014

                        ASSEMBLY COMMITTEE ON APPROPRIATIONS
                                  Mike Gatto, Chair

                   SB 1010 (Mitchell) - As Amended:  June 11, 2014

          Policy Committee:                             Public  
          SafetyVote:5-1

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

           SUMMARY  

          This bill equalizes penalties for possession for sale of cocaine  
          base and possession for sale of powder cocaine. Specifically,  
          this bill: 

          1)Changes the penalty for possession for sale of cocaine base  
            from three, four, or five years, to two, three, or four years  
            of incarceration. (The penalties for simple possession or  
            straight sales are currently the same:  two, three or four  
            years, and three, four or five years.)  

          2)Prohibits granting probation to a person convicted of  
            possession for sale of 28.5 grams or more of cocaine base, or  
            57 grams or more of a substance containing at least 5 grams of  
            cocaine base, rather than 14.25 grams, unless the court finds  
            unusual circumstances demonstrating that probation promotes  
            justice.

          3)Authorizes seizure and forfeiture of a vehicle, boat or  
            airplane used as an instrumentality of drug commerce involving  
            cocaine base weighing 28.5 grams or more, or 57 grams or more  
            of a substance containing at least 5 grams of cocaine base,  
            rather than 14.25 grams.

          4)States legislative findings and declarations that powder  
            cocaine and cocaine base are "two forms of the same drug, the  
            effects of which on the human body are so similar that to mete  
            out unequal punishment for the same crime?is wholly and  
            cruelly unjust." 

           FISCAL EFFECT  








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          1)Significant ongoing GF savings, potentially up to $4.5  
            million, based on a six-month difference in time served in  
            state prison for 160 persons convicted of possession for sale  
            of cocaine base with a specified prior offense (the average  
            number of commitments over the past two years), assuming full  
            per capita prison costs. 

          2)Significant ongoing local, non-reimbursable incarceration  
            savings, potentially in the range of $6.5 million, based on  
            the 1,200 persons committed to state prison for possession for  
            sale of cocaine base in 2010 and 2011, prior to realignment,  
            and the 320 persons committed to state prison  
            post-realignment, in 2012 and 2013, assuming a per capita cost  
            of $30,000.

          3)Incarceration savings would be offset to an unknown degree by  
            increased non-reimbursable probation costs, as a result of  
            authorizing probation for possession for sale of cocaine base  
            at the same volume threshold as cocaine powder. For order of  
            magnitude purposes, every 100 additional probation cases would  
            offset incarceration savings by about $500,000.

          4)Unknown, likely minor, decrease in state and local asset  
            forfeiture revenue to the extent increasing the volume  
            threshold for forfeiture reduces state and local asset  
            forfeitures. For order of magnitude purposes, state and local  
            law enforcement share about $25 million per year in asset  
            forfeitures, with a greater amount, in the range of $35  
            million annually, shared with the state through federal asset  
            forfeiture. 

           COMMENTS  

           1)Rationale  . The author's intent is to address what she and  
            proponents contend is a significant sentencing disparity with  
            racial overtones. 

            According to the author, "SB 1010 will correct the groundless  
            disparity in sentencing, probation and asset forfeiture  
            guidelines for possession of crack cocaine for sale versus the  
            same crime involving powder cocaine that has resulted in a  
            pattern of racial discrimination in sentencing and  
            incarceration in California. 









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            "Crack and powder cocaine are two forms of the same drug.   
            Scientific reports, including a major study published in the  
            Journal of the American Medical Association, demonstrate that  
            they have essentially identical effects on the human body.   
            Powder cocaine can be injected or snorted.  Crack cocaine can  
            be injected or smoked, and is a product derived when cocaine  
            powder is processed with an alkali, typically common baking  
            soda.  Gram for gram, there is less active drug in crack  
            cocaine than in powder cocaine.

            "Whatever their intended goal, disparate sentencing guidelines  
            for two forms of the same drug has resulted in a pattern of  
            institutional racism, with longer prison sentences given to  
            people of color who are more likely than whites to be arrested  
            and incarcerated for cocaine base offenses compared to powder  
            cocaine offenses, despite comparable rates of usage and sales  
            across racial and ethnic groups.

           2)California state prison incarceration for cocaine base  
            disproportionate in terms of ethnicity. According to  
            Department of Corrections and Rehabilitation data on the  
            number of inmates imprisoned for possession for sale of powder  
            cocaine and for possession for sale of cocaine base, from FY  
            2005-06 through 2009-10, African Americans were imprisoned for  
            possession of cocaine base for sale at a rate 43.25 times that  
            for Caucasians.
             
             (For a full analysis of rates of use and incarceration, see  
            the June 17 Assembly Public Safety Committee analysis.)

           3)Support  . The American Civil Liberties Union states, "SB 1010  
            will correct the groundless disparity in sentencing, probation  
            and asset forfeiture guidelines for possession for sale of  
            crack cocaine versus the same crime involving powder cocaine  
            that has resulted in a pattern of racial discrimination in  
            sentencing and incarceration in California.  Moreover, the  
            nonpartisan Legislative Analyst's Office estimates that, by  
            equalizing the penalty, the state and local governments would  
            save millions of dollars annually."

           4)Opposition  . The California Narcotics Officers' Association  
            states, "Senate Bill 1010 will lower penalties for trafficking  
            in cocaine base to the level that currently exists for powder  
            cocaine trafficking.  Although we agree with you that there is  
            no rational basis for having different levels of punishment  








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            for trafficking in the same product, we must respectfully  
            disagree with the remedy that is embodied in Senate Bill 1010:  
             the reduction of penalties for drug traffickers dealing in  
            cocaine base.  
           
             "We believe that the preferable approach is to raise the  
            penalties for powder cocaine trafficking to the same level  
            that currently exists for trafficking in cocaine base.   
            Candidly, the damages done to individuals, families and  
            neighborhoods by virtue of cocaine trafficking are severe.   
            Although we support equalizing the penalty structures, we do  
            not believe that drug traffickers - who visit real harm on  
            communities - should be the beneficiaries of legislation that  
            equalizes the penalty structure."  
             
           1)Prior Legislation  . Legislation by Assemblymember Dymally in  
            2004, 2005 and 2008 to address this issue passed Assembly  
            Public Safety Committee and this committee but was never taken  
            up on the floor.  

           
           Analysis Prepared by  :    Geoff Long / APPR. / (916) 319-2081