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 SB 1010 Page 2 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. SB 1010 Page 3 "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 SB 1010 Page 4 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