BILL ANALYSIS Ó SB 1283 Page A Date of Hearing: June 17, 2014 Counsel: Gabriel Caswell ASSEMBLY COMMITTEE ON PUBLIC SAFETY Tom Ammiano, Chair SB 1283 (Galgiani) - As Amended: May 27, 2014 As Proposed to be Amended in Committee SUMMARY : Creates a new infraction for the use and possession of specified synthetic stimulant compounds, or synthetic cannabinoids. Specifically, this bill : 1)Creates an infraction for the use or possession of specified synthetic stimulant compounds or synthetic stimulant derivatives, or any synthetic cannabinoid compound or any synthetic cannabinoid derivative. Specifies the punishment for the infraction is a maximum fine of $250. 2)Requests the Luskin School of Public Affairs at the University of California, Los Angeles, or would require Judicial Council to contract with another entity if the university does not comply with that request, to design an evidence-based education program and treatment model for participation in by individuals convicted of the specified crimes. 3)Requires the Judicial Council to approve the program and treatment model upon a finding that courts can successfully implement the program and education model. 4)Authorizes a defendant, in his or her discretion, to elect to participate in the evidence-based education program and treatment model, if convicted of theabove-described crimes, in which case the execution of sentence would be stayed. The bill would specify that upon successful completion of the program, the case against the defendant would be dismissed. EXISTING LAW : SB 1283 Page B 1)Lists controlled substances in five "schedules" - intended to list drugs in decreasing order of harm and increasing medical utility or safety - and provides penalties for possession of and commerce in controlled substances. (Health & Saf. Code §§ 11350-11401.) 2)Lists cathinone as a Schedule II controlled substance stimulant and provides that simple possession of cathinone is a misdemeanor, punishable by a jail term of up to six month, a fine of up to $1,000, or both. (Health & Saf. Code §§ 11055, subd. (d)(8) and 11377, subd. (b)(3).) 3)Provides that possession for sale of khat or cathinone is a felony punishable by 16 months, 2 years, or 3 years in state prison. (Health & Saf. Code § 11378.) 4)Provides that transportation, sale, or furnishing of khat or cathinone is a felony punishable by 2, 3, or 4 years in state prison and a fine of up to $10,000. (Health & Saf. Code § 11379.) 5)Provides that any person who possesses for sale, sells or furnishes any synthetic cannabinoid compound shall be punished by imprisonment in the county jail for up to six months, a fine of up to $1,000, or both. (Health & Saf. Code § 11357, subd. (a.) 6)Provides that any person who sells, dispenses, distributes, or gives the stimulant substances naphthylpyrovalerone or cathinone, or specified variations of these drugs, or who offers to do such acts, is guilty of a misdemeanor, punishable by a jail term of up to six months, a fine of up to $1,000, or both. (Health & Saf. Code § 11375.5.) 7)Provides that "no person shall use, or be under the influence of, a specified controlled substance. Violation of this provision is a misdemeanor. (Health & Saf. Code § 11550.) Penalties and special provisions for being under the influence of a controlled substance are the following: (Health & Saf. Code § 11550, subds. (a)-(c).) a) First time conviction: Jail term of from 90 days to one SB 1283 Page C year. Probation may last up to five years. The court must include a 90-day jail term as a condition of probation; b) Third conviction within seven years of the prior convictions: If the defendant refuses to complete a licensed drug treatment program, the court must impose a term of at least 180 days in jail unless there are no reasonably available licensed programs; c) The court may allow a defendant convicted for a second time to complete a licensed drug treatment program in lieu of all or part of the mandatory jail term; and, d) Counties are encouraged to augment applications for federal and state drug treatment money to treat persons convicted of this offense. 8)Holds that within the context of Health and Safety Code Section 11550, "use" of a controlled substance means current use, or use immediately prior to arrest. (Bosco v. Justice Court (1978) 77 Cal.App.3d 179, 191; People v. Velasquez (1976) 54 Cal.App.3d 695.) 9)Requires non-violent drug possession offenders to be offered drug treatment on probation, which shall not include incarceration as a condition of probation, in the form of, Proposition 36 (Nov. 2000 election), the Substance Abuse and Crime Prevention Act of 2000 (SACPA). (Pen. Code §§ 1210.1.) 10)Provides that non-violent drug possession offenses include: (Pen. Code § 1210.) a) Unlawful use, possession for personal use, or transportation for personal use of a controlled substance; b) Being under the influence of a controlled substance; and, c) 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. SB 1283 Page D FISCAL EFFECT : Unknown COMMENTS : 1)Author's Statement : According to the author, "The current law relating to synthetic drugs is inconsistent with the rest of the law relating to controlled substances. Although possession for sale is currently illegal, simple use and possession is perfectly legal. This incentivizes the use of these drugs despite their inherent danger. Kids believe that it's not dangerous if it isn't illegal. Also, the manufacturers of these drugs market their product to kids as 'legal drugs' because if the kids get caught, they will not face any punishment." 2)Failure of the "War on Drugs" : In June 2011, the Global Commission on Drug Policy (Commission) released a report, "War on Drugs", examining global drug policy over the past half-century. The purpose of the Commission is to "bring to the international level an informed, science-based discussion about humane and effective ways to reduce the harm caused by drugs to people and societies" and is comprised of current and former heads of state, public officials, and experts. (Global Commission on Drug Policy. For a full list of Commission members, please visit < http://www.globalcommissionondrugs.org/Commission >.) The report states, "The global war on drugs has failed, with devastating consequences for individuals and societies around the world. Fifty years after the initiation of the UN Single Convention on Narcotic Drugs, and 40 years after President Nixon launched the US government's war on drugs, fundamental reforms in national and global drug control policies are urgently needed. "Vast expenditures on criminalization and repressive measures directed at producers, traffickers and consumers of illegal drugs have clearly failed to effectively curtail supply or consumption. Apparent victories in eliminating one source or trafficking organization are negated almost instantly by the emergence of other sources and traffickers. Repressive SB 1283 Page E efforts directed at consumers impede public health measures to reduce HIV/AIDS, overdose fatalities and other harmful consequences of drug use. Government expenditures on futile supply reduction strategies and incarceration displace more cost-effective and evidence-based investments in demand and harm reduction." [Global Commission on Drug Policy, War on Drugs (June 2011).] Among the recommendations found in the report, the Commission recommended implementing drug policies and strategies that are fiscally responsible and are grounded in science, health, security and human rights, rather than those driven by ideology and political convenience. (Id. at pg. 3.) Specifically, the Commission recommends reassessing the manner in which drugs are scheduled, mentioning cannabis as one drug that is anomalously scheduled high in proportion to its risk, as determined by an independent expert assessment of risk. (Id. at 11-12.) The Commission does not specifically mention synthetic cannabinoid compounds, but because of the chemical similarity to cannabis (marijuana), it is likely the commission would view regulation of such compounds in a similar manner. In preparation of the final report, the Commission requested a number of background papers. One of these background papers examined the effects of current drug policy on the criminal justice system and incarceration. This paper stated, "The last three decades have witnessed a global increase in the criminalization of improper drug use. Criminalization has resulted in increased use of harsh punitive sanctions imposed on drug offenders and dramatic increases in rates of incarceration. These policies have had limited impact on eliminating or reducing illegal drug use and may have resulted in adverse consequences for social and community health. The criminal justice system has proved to be an ineffective forum for managing or controlling many aspects of the drug trade or the problem of illegal drug usage." "Drug Policy and the incarceration of low-level drug offenders is the primary cause of mass incarceration in the United States. 40% of drug arrests are for simple possession of marijuana. There is also evidence that drug enforcement has SB 1283 Page F diverted resources from law enforcement of violent crimes and other threats to public safety. Incarceration of low-level drug offenders has criminogenic effects that increase the likelihood of recidivism and additional criminal behavior . . . . Growing evidence indicates that drug treatment and counseling programs are far more effective in reducing drug addiction and abuse than is incarceration." [Bryan Stevenson, Global Commission on Drug Policy, Drug Policy, Criminal Justice, and Mass Imprisonment (January 2011) pg. 2.] 3)Synthetic Cannabinoids : The European Monitoring Centre for Drugs and Drug Addiction (EMCDDA) is a European Union agency. The EMCDDA website states that it "exists to provide the EU ? with a factual overview of European drug problems and a solid evidence base to support the drugs debate." The EMCDDA website includes the following information about synthetic cannabinoids: Synthetic cannabinoids ?. bind to the same cannabinoid receptors in the brain [as THC] ? More correctly designated as cannabinoid receptor agonists, they were developed over the past 40 years as therapeutic agents, often for ? pain. However, it proved difficult to separate the desired properties from unwanted psychoactive effects. Although often referred to simply as synthetic cannabinoids, many of the substances are not structurally related to the so-called 'classical' cannabinoids, i.e., compounds, like THC? The synthetic cannabinoids fall into seven major structural groups ?. Identification and quantitative analysis is limited by the availability of pure reference samples. No field tests ? will detect the SB 1283 Page G majority of synthetic cannabinoids. [F]orensic analysis of blood samples for the recent intake detection of synthetic cannabinoids [is] available in some laboratories. [D]etection of metabolites in urine samples is not yet fully developed. [L]ittle is known about the detailed pharmacology and toxicology of the synthetic cannabinoids and few formal human studies have been published. It is possible that, apart from high potency, some cannabinoids could have? long half-lives potentially leading to a prolonged psychoactive effect. ? [T]here could be considerable ? batch variability? in terms of substances present and ?quantity. Thus, there is a higher potential for overdose than with cannabis. (Italics added.) 4)Regulation of Synthetic Cannabinoids : Cannabinoids are essentially drugs that bind to certain receptors in the brain - the same receptors to which THC and other drugs obtained from cannabis bind. Synthetic cannabinoids are often inaccurately described as "synthetic marijuana" or "synthetic THC" - the most prominent psychoactive chemical in marijuana. However, as the preceding comment illustrates, synthetic cannabinoids are often not closely related chemically or similar to THC. If any synthetic cannabinoid can be shown to be chemically equivalent to THC, or the effects of the drug equivalent to THC, conduct involving the synthetic cannabinoid would be subject to prosecution because the drug would be considered an analog of THC. An analog is a drug that is substantially similar in chemical structure or effects to a scheduled drug. Under California law, an analog of a controlled substance is essentially treated as a controlled substance. Because many synthetic cannabinoids may not be similar in properties or chemical structure to THC, the ability of prosecutors to use the analog statute in synthetic cannabinoid cases may be limited. This is particularly likely if the defendant retains an expert who can explain the chemistry and effects of SB 1283 Page H cannabinoids. The diverse structures and effects on a user of synthetic cannabinoids also make it difficult to draft a statute including the drugs in the controlled substance schedules as generic groups or classes of drugs, unlike opiates for example. It could be necessary to name each class or form of similar synthetic cannabinoids, and perhaps numerous individual chemicals. There are dozens, if not hundreds, of synthetic cannabinoids and more could be developed. A legislative effort to ban synthetic cannabinoids could be difficult to achieve. The National Conference of State Legislatures (NCSL) has posted a list of the eight groups of synthetic cannabinoids that are variously prohibited in numerous state codes. Consistent with the NCSL list, it appears that as of 2013 the federal controlled substances schedules include 26 individual synthetic cannabinoids or synthetic stimulants and eight types of synthetic cannabinoids. This was done through congressional action and emergency scheduling by the federal Drug Enforcement Administration (DEA). Nevertheless, in February of 2013, the American Association for Clinical Chemistry Website posted diagrams of the chemical composition of synthetic cannabinoids in products tested in September 2012. Of the 16 detected compounds or chemicals, only five were included in the federal drug schedules. A March 3, 2014 posting on the Website-electronic journal EmDocs - Emergency Medicine Education - noted that new forms of synthetic cannabinoids were being developed to avoid detection in drug tests and greater intoxication. Each new form has its own "distinctive binding affinity" to cannabinoid receptors. "First generation synthetic cannabinoids are believed to be more benign than the newer generation cannabinoids, which are more likely to cause cardiotoxicity and neurotoxicity." It appears that efforts to stay ahead of synthetic cannabinoid prohibitions will result in more SB 1283 Page I problematic substances. 5)Synthetic Stimulant Naphthylpyrovalerone : The United Kingdom Advisory Council on the Misuse of Drugs (ACMD) is an agency of the UK Home Office that advises policy makers on drug issues. In the past few years, the ACMD has reported on the synthetic stimulants covered by this bill. The ACMD has stated that naphthylpyrovalerone (or naphyrone) "acts as a triple monoamine reuptake inhibitor, producing psychostimulant effects." The report<1> noted that naphyrone has been described as being stronger than cocaine or amphetamines. However, a prominent product branded as NRG-1 may not necessarily contain naphyrone or naphthylpyrovalerone, but may contain "naphyrone or any number of other cathinones?caffeine or other?constituents." Triple reuptake inhibitors affect the neurotranmitters dopamine, serotonin and norepinephrine. Cocaine is a triple reuptake inhibitor. (Methamphetamine affects dopamine neurotransmitters and MDMA (ecstasy) affects the serotonin system.) Naphyrone also appears to cause direct release of neurotransmitters. In sum, naphyrone appears to be a highly potent stimulant, perhaps many times stronger than cocaine. 6)Analog Prosecution Issues : The ACMD report also stated: "Naphyrone has a close structural resemblance to the cathinones such as mephedorne and methylenedioxy-pyrovalerone MDVP. Naphyrone, however, remains outside the generic definition in which a number of cathinones ? were controlled [in 2010]." In particular, the ACMD report stated: "Naphyrone is a naphthyl analogue of the cathinones ?" The European drug monitoring agency reports that synthetic cathinones are controlled as a class of drug in the UK. California controlled substance law includes five schedules. The schedules list specified chemicals and often include the salts and other variants of the scheduled drug. It would appear that many of the listed controlled substances could be said to include generic definitions. -------------------------- <1> UK Advisory Council on Misuse of Drugs (ACMD) Consideration of naphthylpyrovalerone analogues and related compounds . SB 1283 Page J California controlled substance law also allows prosecution of a person for possession of and commerce in a drug that is an "analog" of a Schedule I or II drug. (Health & Saf. Code §§ 11400-11401.) The purpose of the analog law is to prevent "street chemists" from circumventing drug laws by synthesizing drugs "which have, are represented to have, or are intended to have effects on the central nervous system which are substantially similar to, or greater than" scheduled drugs. (Health & Saf. Code § 11400.) An analog is defined as: (1) A substance the chemical structure of which is substantially similar to the chemical structure of a [Schedule I or II controlled substance]. (2) A substance which has, is represented as having, or is intended to have a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to, or greater than, the stimulant, depressant, or hallucinogenic effect on the central nervous system of a [Schedule I or II controlled substance]. (Health & Saf. Code § 11401.) Appellate court decisions have held that the analog statute has a broad application. Clearly, an analog need not fit within the definition of a scheduled drug. In People v. Becker (2010) 183 Cal. App. 4th 1151, the appellate court upheld the defendant's conviction for possession of MDMA as an analog of methamphetamine, a Schedule II controlled substance. The court found that there was substantial evidence that MDMA produced effects that were "substantially similar" to methamphetamine. The major testimony to support the prosecution's case was that of the police investigator who stated: "It's initially much like cocaine. Its methyldioxy methamphetamine that is what MDMA is. So from the methamphetamine, logically it's a stimulant, so you would get a dramatically raised heartbeat?" The investigator noted that MDMA also has hallucinogenic effects. (Id., at p. 1154-1155.) The Becker case supports a conclusion that the California SB 1283 Page K analog law is quite broad. Cathinone is a Schedule II stimulant. (Health & Saf. Code § 11055, subd. (d)(8).) If the UK ACMD report is correct that naphthylpyrovalerone "has a close structural resemblance to cathinones" and that the drug is a psychostimulant, naphthylprovalerone may be found to be an analog of cathinone under California law. Further, as naphthylpyrovalerone interacts with the same neurotransmitters as cocaine, and produces similar effects, it could possibly be said to be an analog of cocaine. Committee staff is unaware of any case where a district attorney was unable to prosecute possessors of so-called "bath salts" under the analog statute. Nor is staff aware of any particular cases where such a prosecution was upheld. However, discussions with representatives of district attorneys indicate that the Los Angeles District Attorney may believe that his or her office can prosecute bath salt (naphthylpyrovalerone) cases pursuant to the analog law. The DEA has reported significant success in applying the federal analogue statute to "many" synthetic drugs of all kinds. However, it is not clear if most synthetic cannabinoids in current use are included. Nevertheless, the National Institutes of Health's PubMed site included an abstract of an emergency medicine journal article that stated as to all of the new classes of synthetic drugs: "Slight alterations of the basic chemical structure of substances create an entirely new drug no longer regulated by current laws and an ever-changing landscape of clinical effects." It also appears that new forms of synthetic drugs are being constantly developed. The author has expressed a willingness to further define the scientific compounds and analogs of the substances referenced in this bill. These amendments would strengthen the legislation and improve the policy. 7)Argument in Support : According to the California Narcotic Officers' Association , "The California Narcotic Officers SB 1283 Page L Association commends you for your introduction of Senate Bill 1283. This legislation would prohibit the possession of so-called 'bath salts' and 'synthetic marijuana.' " 'Ivory Wave,' 'Purple Wave,' 'Vanilla Sky,' and 'Bliss' are among the many street names of so-called designer drugs known as 'bath salts,' which have sparked thousands of calls to poison centers across the U.S. These drugs contain synthetic chemicals that are similar to amphetamines. Some, but not all, of the chemicals used to make them are illegal. "With names like Spice, K2, No More Mr. Nice Guy, and hundreds of others, the drugs often called 'synthetic marijuana' are - in reality - very different from marijuana. They contain powerful chemicals called cannabimimetics and can cause dangerous health effects. The drugs are made specifically to be abused. Like many other illegal drugs, synthetic marijuana is not tested for safety, and users don't really know exactly what chemicals they are putting into their bodies. "Although sale and possession for sale are prohibited in California, possession of bath salts or spice is permitted. "Put simply, these are products that not only harm the user, they are pharmacological assault weapons. There have been numerous instances of persons under the influence of bath salts or spice engaging in aggressive actions against others. The most visible manifestation of those actions involved an incident in Miami where a person under the influence of bath salts literally ate the face off of a homeless man. "Senate Bill 1283 will prohibit the possession of bath salts or spice, making possession a misdemeanor. The reality is that persons arrested for possession will not be incarcerated. Instead, pursuant to Proposition 36, they will be sent to a treatment program, where they will have a chance to free themselves from an extremely destructive addiction." 8)Argument in Opposition: According to the Drug Policy Alliance , "As currently written, SB 1283 would create new penalties for the possession of synthetic cannabinoids and stimulants for personal use. SB 1283 Page M "We do not believe that it is the author's intent to deny young people and others the opportunity to go to college, join the armed forces, or find employment. However, that is the likely outcome of SB 1283. The lifetime consequences of a misdemeanor drug possession offense include: loss of educational benefits to pay for college; denial of federally subsidized housing benefits; denial of nutritional and job training benefits (in other states); reduced opportunity for employment in the public and private sector; discharge from military service; and, loss of veterans benefits, among others. These life-long collateral consequences are simply not warranted, and do nothing to advance our state's public safety, public health and economic goals. "Further, the Drug Policy Alliance opposes this bill because our current drug laws are applied in a racially and economically biased manner and there is no reason to believe that these new penalties will be applied equitably. "Drug Policy Alliance did not oppose penalties for sale or possession for sale of synthetic cannabinoids and stimulants, in order to get these new and potentially harmful products out of convenience store or other settings where adults or minors might purchase them. However, we cannot ever condone locking someone up for what they put into their own body, or possess solely for their own personal use. The drug war/mass incarceration approach has wasted billions of public dollars, and erected lifetime barriers to successful employment and education. These employment, housing, nutrition and education barriers fall hardest on low income communities of color." 9)Prior Legislation : a) AB 2420 (Hueso) 2011-2012 legislative session, would have created infraction and misdemeanor penalties for possession or use of specified synthetic stimulants and synthetic cannabinoids. AB 2420 failed passage in Assembly Public Safety. b) AB 486 (Hueso), Chapter 656, Statutes of 2011, prohibited the sale, dispensing, distribution, furnishment, SB 1283 Page N administration or giving, or attempt to do so, of any synthetic stimulant compound of any specified synthetic stimulant derivative. Violation of this section is punishable by imprisonment in a county jail not exceeding 6 months, or by a fine not exceeding $1,000, or by both that fine and imprisonment. c) SB 420 (Hernandez) Chapter 420, Statutes of 2011, prohibited the sale, dispensing, distribution, furnishment, administration or giving, or attempt to do so, of any synthetic cannabinoid compound or any synthetic cannabinoid derivative. Violation of this section is punishable by imprisonment in a county jail not exceeding 6 months, or by a fine not exceeding $1,000, or by both that fine and imprisonment. REGISTERED SUPPORT / OPPOSITION : Support California Narcotic Officers' Association Opposition A New PATH American Civil Liberties Union American Friends Service Committee California Attorneys for Criminal Justice California CURE California Public Defenders Association Drug Policy Alliance Analysis Prepared by : Gabriel Caswell / PUB. S. / (916) 319-3744 SB 1283 Page O