BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 139 Hearing Date: May 12, 2015
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|Author: |Galgiani |
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|Version: |January 26, 2015 |
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|Urgency: |Yes |Fiscal: |Yes |
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|Consultant:|JM |
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Subject: Controlled Substances
HISTORY
Source: California Narcotics Officers Association
Prior Legislation:SB 1283 (Galgiani) - Ch. 372, Stats. 2013
AB 486 (Hueso) - Ch. 656, Stats. 2011
SB 420 (Hernandez) - Ch. 420, Stats. 2011
AB 2420 (Hueso) - Died in Assembly Public Safety,
2012
AB 1141 (Anderson) - Ch. 292, Stats 2007
Support: Association for Los Angeles Deputy Sheriffs; Los
Angeles Police Protective League; Riverside Sheriffs
Association; California Association of Code
Enforcement Officers; California College and
University Police Chiefs Association; California
Police Chiefs Associations; California State Sheriffs'
Association; California District Attorneys Association
Opposition:American Civil Liberties Union; Legal Services for
Prisoners with Children
PURPOSE
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The purpose of this bill is to 1) provide that possession of a
specified synthetic cannabinoid or possession of a specified
synthetic stimulant is a crime, with the following classes of
offense and penalties: First offense is an infraction,
punishable by a fine of up to $250; a second offense is an
infraction or misdemeanor, with a misdemeanor fine of up to
$500, a jail term of up to six months, or both; a third or
subsequent offense is a misdemeanor, punishable by a fine of up
to $1,000, a jail term of up to one year, or both; 2) to add
myriad specified drugs or chemicals to the list of prohibited
synthetic cannabinoids in existing law; and 3) add specified
synthetic stimulants to the statutory list of prohibited drugs
of that type.
Existing law lists controlled substances in five "schedules" -
intended to reflect 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.)
Existing law 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).)
Existing law 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.)
Existing law 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.)
Existing law 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.)
Existing law provides that any person who sells, dispenses,
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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.)
Existing law provides that it is a misdemeanor to "use or be
under the influence of" a specified controlled substance.
(Health & Saf. Code § 11550.) Penalties and special provisions
for being under the influence of a controlled substance are the
following:
First time conviction: Jail term of 90 days to one
year. Probation may last up to five years. The court must
include a 90-day jail term as a condition of probation;
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;
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,
Counties are encouraged to augment applications for
federal and state drug treatment money to treat persons
convicted of this offense. (Health & Saf. Code § 11550,
subds. (a)-(c.)
Existing decisional law 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.)
Existing Law - Proposition 36 (Nov. 2000 election), the
Substance Abuse 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 §§
1210-1210.5.)
Existing law provides that non-violent drug possession offenses
include:
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Unlawful use, possession for personal use, or
transportation for personal use of a controlled substance;
Being under the influence of a controlled substance;
and, (Health and Saf. Code § 11550.); and, 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 provides that beginning on January 1, 2016, a
person who "uses or possesses" a specified synthetic cannabinoid
or specified synthetic stimulant is guilty of an infraction.
(Health and Saf. Code § 11357.5.)
This bill provides that possession or use of a specified
synthetic cannabinoid or synthetic stimulant is guilty of a
crime, as follows:
The first offense is an infraction, punishable by a fine
of up to $250.
The second offense is an infraction or misdemeanor. The
infraction penalty is a fine of up to $250 and the
misdemeanor is punishable by imprisonment in a county jail
not to exceed six months, a fine of up to $500, or both.
A third or subsequent offense is a misdemeanor,
punishable by a jail term not to exceed six months, a fine
of up to $1,000, or both.
This bill adds a voluminous or exhaustive list of specified
classes of synthetic cannabinoids and individual chemicals to
the definition of a synthetic cannabinoid that appears in
current criminal statutes.
This bill adds a number of synthetic stimulants - essentially
synthetic cathinones<1> - to the list of these prohibited
substances in existing law.
This bill is an urgency measure.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
---------------------------
<1>
http://www.emcdda.europa.eu/publications/drug-profiles/synthetic-
cathinones
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For the past eight years, this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In February of this year the administration reported that as "of
February 11, 2015, 112,993 inmates were housed in the State's 34
adult institutions, which amounts to 136.6% of design bed
capacity, and 8,828 inmates were housed in out-of-state
facilities. This current population is now below the
court-ordered reduction to 137.5% of design bed capacity."(
Defendants' February 2015 Status Report In Response To February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).
While significant gains have been made in reducing the prison
population, the state now must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed to
reducing the prison population;
Whether a proposal addresses a major area of public safety or
criminal activity for which there is no other reasonable,
SB 139 (Galgiani ) PageF
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appropriate remedy;
Whether a proposal addresses a crime which is directly dangerous
to the physical safety of others for which there is no other
reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are proportionate,
and cannot be achieved through any other reasonably
appropriate remedy.
COMMENTS
1.Need for This Bill
According to the author:
The danger and prevalence of synthetic drugs has been
well-documented in news media stories throughout the
state and country. From the 16-year old in
Indianapolis who passed away after his first time
trying the drug
(http://fox59.com/2015/02/03/new-synthetic-drug-bill-pr
oposed-as-statewide-ban-is-thrown-out/), to the 18
year old in North Dakota who died on a street corner
after trying the drug
(http://www.cnn.com/2014/12/01/us/synthetic-drugs-inves
tigation/), to right here in our own backyards where a
19 year old died after simply taking one hit of the
drug
(http://www.news10.net/story/news/local/roseville/2014/
08/08/roseville-teen-dies-after-smoking-spice-connor-ec
khardt/13782433/), we are undoubtedly watching the
spread of a deadly and extremely dangerous new
substance.
On February 4th of this year NBC 4 of Southern
California ran a story detailing how synthetic drugs
are now the second most used illicit drug by high
school seniors; second only to marijuana
(http://www.nbclosangeles.com/news/local/Designer-Drugs
-Rise-Teens-Spice-Lean-Bath-Salts-291000251.html).
The market for these drugs is fundamentally rooted in
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demand from our youth here in California. Just last
year in my district, a drug bust netting over $20
million worth of synthetic drugs took place at
warehouses in Stockton and Millbrae
(http://sacramento.cbslocal.com/2014/05/07/stockton-war
ehouse-raided-as-part-of-nationwide-crackdown-on-spice-
drug/). In Bakersfield, a drug bust uncovered over
1,000 pounds of these drugs and over $2.7 million in
cash
(http://www.huffingtonpost.com/2013/12/17/bath-salts-mi
chael-kamar_n_4459846.html). Two Orange County men
were also recently arrested for allegedly selling more
than $12 million worth of substances used to create
synthetic drugs
(http://www.latimes.com/local/lanow/oc-men-charged-bath
-salts-drug-ring--20140613-story.html). Finally,
multiple synthetic drug busts in Texas have been
accredited to being manufactured here in California,
indicating the sophistication of these local
operations.
(http://www.news-journal.com/news/police/raid-hits-long
view-stores-that-sell-synthetic-drug-owners-arrested/ar
ticle_6ede7edf-9000-55c3-b8d6-cd5f4d41d342.html).
(http://www.connectamarillo.com/news/story.aspx?id=1156
375#.VNj1OsnlwfA).
Part of the reason that these drugs dealers are having
so much success marketing the drug to teenagers and
young adults is that they are able to market them as
being legal. Up until my bill last year, simple
possession of these drugs was actually perfectly legal
under state law. This is despite their
well-documented danger. Now it has come to my
attention that, underground chemists skirt the law by
slightly altering the chemical compounds of these
drugs, to come up with new versions, which
technically, are NOT illegal yet. Senate Bill 139
will close these loopholes in state law and allow law
enforcement to be better equipped in getting these
drugs away from our communities.
2.Background - Synthetic Cannabinoids
Synthetic cannabinoids come in two basic forms. CB1
SB 139 (Galgiani ) PageH
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cannabinoids bind to CB1 cannabinoid receptors in the brain.
CB2 cannabinoid receptors bind to cells throughout the body that
are largely involved in regulating the immune system, although
their full properties of CB2 are not known. It appears that CB2
cannabinoids could be used to treat inflammation. (THC binds to
CB1 and CB2 receptors.) C1 cannabinoids have psychoactive
properties.<2> Typically statutes, news reports and academic
works concern CB1 synthetic cannabinoids.
The European Monitoring Centre for Drugs and Drug Addiction
(EMCDDA) is a European Union agency that "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. ?However, it proved difficult to separate the
desired properties from unwanted psychoactive effects.
Although often referred to simply as synthetic
cannabinoids [or synthetic marijuana], many of the
substances are not structurally related to the
so-called "classical" cannabinoids like THC?
?[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?leading to a
prolonged psychoactive effect. ? [T]here could [also]
be considerable ? batch variability? in terms of
substances present and ?quantity.
Recent EMCDD Data on Synthetic Cannabinoids Include:
A synthetic cannabinoid, JWH-018, was first detected in
"Spice" products in 2008.
---------------------------
<2> http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3567606/
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81 new psychoactive substances were reported to EMCDDA in
2013, 29 were synthetic cannabinoids.
105 synthetic cannabinoids in total [were] monitored by EU
Early Warning System [in January of 2014].
14 recognizable chemical families of synthetic cannabinoids
are known.
The EMCDD reports that most synthetic cannabinoids are
manufactured in China and shipped though legitimate distribution
networks.<3> The White House Office of National Drug Control
Policy<4> states that most synthetic cannabinoids originate
overseas, but that they are also being made on a small scale in
the United States.
The EMCDD reported<5> on adverse consequences of synthetic
cannabinoid use:
---------------------------
<3>
http://www.emcdda.europa.eu/topics/pods/synthetic-cannabinoids
<4>
https://www.whitehouse.gov/ondcp/ondcp-fact-sheets/synthetic-drug
s-k2-spice-bath-salts
<5> The adverse health effects associated with synthetic
cannabinoids are linked to both the intrinsic nature of the
substances and to the way the products are produced. There have
been numerous reports of non-fatal intoxications and a small
number of deaths associated with their use. As noted above, some
of these compounds are very potent, therefore the potential for
toxic effects is high. In this respect some of the harms may
result from uneven distribution of the substances within the
herbal material, which may result in some products containing
doses that are higher than intended .
The reported adverse effects of synthetic cannabinoid products
include agitation, seizures, hypertension, emesis (vomiting) and
hypokalemia (low potassium levels). Although some of these are
similar to symptoms observed after a high dose of cannabis,
researchers have concluded that 'legal highs' containing
synthetic cannabinoids are potentially more harmful than
cannabis. In addition, there is some evidence to suggest that
synthetic cannabinoids can be associated with psychiatric
symptoms, including psychosis. There are also investigations
underway in the US regarding links between the use of synthetic
cannabinoid products and acute kidney injury and recently, a
case report associated the use of the cannabinoid JWH-018 with
acute ischemic strokes in two otherwise healthy males.
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The adverse health effects associated with synthetic
cannabinoids are linked to both the intrinsic nature
of the substances and to the way the products are
produced. There have been numerous reports of
non-fatal intoxications and a small number of deaths
associated with their use. As noted above, some of
these compounds are very potent; therefore the
potential for toxic effects is high. Harm may result
from uneven distribution of the substances within the
herbal material, result[ing] in products containing
doses that are higher than intended.
The reported adverse effects of synthetic cannabinoid
products include agitation, seizures, hypertension,
emesis (vomiting) and hypokalemia (low potassium
levels). ?There is some evidence?that synthetic
cannabinoids can be associated with psychiatric
symptoms, including psychosis. There are also
investigations underway in the US regarding links
between the use of synthetic cannabinoids? and acute
kidney injury and recently, a case report associated
the use of the cannabinoid JWH-018 with?strokes in two
otherwise healthy males.
1.This Bill is Drawn From a Model Statute and Lists 14 Classes
or Families of Synthetic Cannabinoids and Myriad Individual
Chemicals
As noted above, there are 14 currently known "families" or
classes of chemicals. The bill appears to include them all.
The EMCDD noted that 105 individual chemicals in these classes
were being monitored in Europe in 2014. This bill appears to
include hundreds of individual chemicals in the list of
prohibited synthetic cannabinoids. Many of the chemicals are
identified through a letter and number combination, such as
JWH-018, AM-087 and HU-210. The letters are generally the
initials of the researcher who first synthesized the chemical or
the institution where the research was done.
The background provided by the author and sponsor includes model
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statutes for prohibiting synthetic cannabinoids and synthetic
stimulants. The model statute was drafted by the National
Alliance for Model State Drug Laws.<6> The list of chemicals in
the bill appears to be copied from the model statute. The
purpose of describing synthetic cannabinoids by class or family
is to include any new chemical in each class as a prohibited
substance. That is, if a new drug is developed in any of the 14
classes, the chemical is prohibited, regardless of whether the
individual chemical is included in the statute. It is not known
whether many new synthetic cannabinoid classes can or will be
developed. Synthesis of a new class or family of cannabinoids
would not be included in the list of prohibited chemicals.
2.Emergency Room Visits Related to Synthetic Cannabinoids
From 2010 through 2011 reported emergency room (ER) visits
linked to synthetic cannabinoids increased from 11,406 to
28,531. The vast majority of patients were young males, ages 12
through 20.<7> This is a relatively small number of ER visits,
as total drug-related ER visits numbered 2,460,000 in 2011. Of
the 2,300,000 ER visits in 2010, approximately 460,000 concerned
marijuana and approximately 11,000 concerned synthetic
cannabinoids. However, the reported number of synthetic
cannabinoid ER visits likely understates actual visits, as
testing availability is limited and some medical personnel might
not be familiar with the drugs. The ER studies reported that
very few patients engaged in follow-up treatment. It is not
clear whether ER doctors did not make referrals for additional
care, or if patients chose not to seek it.
Very recently, ER visits for synthetic cannabinoids have spiked.
As use of these drugs appears to be dropping, the surge in ER
visits is likely the result of a dangerous change in chemical
composition of the drugs. One who obtains a synthetic
---------------------------
<6> http://www.namsdl.org/about.cfm . According to its website,
NAMSDL is funded by Congress and coordinates policy initiatives
with the Office of National Drug Control Policy.
<7>
http://www.samhsa.gov/data/sites/default/files/SR-1378/SR-1378.pd
f
SB 139 (Galgiani ) PageL
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cannabinoid can only guess as to its composition and effects.<8>
The New York Times explained in an April 24, 2015 article:
"[Synthetic cannabinoids ?typically imported from China by
American distributors, come in hundreds of varieties; new
formulations appear monthly, with molecules subtly tweaked to
try to skirt the DEA's list of illegal drugs as well as
drug-detecting urine tests. ? [E]each new variety can present
distinct health risks caused by its underlying chemistry or
contaminants in renegade manufacturing facilities."
5.United Nations Report on Synthetic Cannabinoids Addresses the
Issue of Dependence or Addiction
A United Nations report in 2011 considered the addictive
potential of synthetic cannabinoids. The report found:
Some reports suggest that a number of these substances
may have a higher addictive potential compared to
cannabis due to quicker development of tolerance [26,
53]. 11 In a case report published by Zimmermann et
al. in 2009 [53], withdrawal phenomena and a
dependence syndrome occurred after repeated
consumption of relatively high doses of 'Spice gold',
i.e. 3 g per day. From experiments carried out with
autaptic hippocampal neurons, it was shown that JWH018
could potently induce rapid and robust CB1 receptor
internalization, highlighting the potential of
developing tolerance and dependence on this substance
[26].
It appears that users who consume the same synthetic cannabinoid
substance could become dependent or habituated relatively
quickly. However, the chemical composition of synthetic
cannabinoids changes rapidly, often with a different affinity
for cannabinoid receptors and a different effect on the user.
It is not clear if there is a general dependence or addictive
quality among synthetic cannabinoids, such that use of one
chemical or substance would contribute to dependence on another,
or other, synthetic cannabinoids. Multiple synthetic
cannabinoids that bind to the same cannabinoid receptors would
---------------------------
<8>
http://www.nytimes.com/2015/04/25/health/surge-in-hospital-visits
-linked-to-a-drug-called-spice-alarms-health-officials.html
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perhaps be likely to produce dependence when consumed
separately. One controlled study found evidence that synthetic
cannabinoids in the JWH class produced dependence symptoms in
mice. The study cautioned that the results might not apply to
all chemicals of that class and that some cannabinoid binding
chemicals did not appear to produce symptoms of dependence.<9>
6.Synthetic Cannabinoid and Synthetic Stimulant Use is Falling
Rapidly Among Young People
The University of Michigan Monitoring the Future survey first
asked 8th and 10th graders about their use of synthetic
[cannabinoids] in 2011. The survey found that in 2012 annual
prevalence rates were 4.4% and 8.8%, respectively. Use in all
grades dropped in 2013, and the decline was sharp and
significant among 12th graders The declines continued into
2014 and were significant for both 10th and 12th graders; use
for all grades declined 40% in 2014 from peak use in 2011
Awareness of the dangers of synthetic cannabinoid was up sharply
among 12 graders.<10>
The use of synthetic stimulants among 8, 10th and 12 graders was
first reported in the survey in 2012, with approximately 1% of
students having tried the drug. Use of synthetic stimulants has
also declined significantly - down approximately 20% from 2012
to 2014.<11>
The decline in the use of synthetic cannabinoids and synthetic
stimulants was preceded by a precipitous drop in the use of the
psychedelic salvia divinorum - another drug that gained
popularity and some infamy around 2008. Since peak use (of
3.6%) by students in 2011 and 2012, use of salvia declined 61%.
Sale or distribution of salvia was made a misdemeanor in 2008,
---------------------------
<9> http://www.ncbi.nlm.nih.gov/pmc/articles/PMC4131522/
<10>
http://monitoringthefuture.org/pubs/monographs/mtf-overview2014.p
df
<11>
http://www.monitoringthefuture.org//pubs/monographs/mtf-overview2
014.pdf
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but no penalties exist for possession or use.<12> The decline
in use appears to result from negative experiences by users,
such as a frightening sensation of falling through space, not
criminal penalties.<13>
7. Background on Synthetic Stimulants Covered by This Bill
It appears that the synthetic stimulant chemicals included in
this bill are closely related to cathinone, the psychoactive
chemical in the khat plant, which is commonly used in the Middle
East. Khat and Cathinone are included in Schedule II
stimulants. (Health and Saf. Code § 11055, subd. (d)(7)-(8).)
Without this bill, it appears that possession of one of the
specified synthetic chemicals would be a crime through the
analog statute. The analog statute provides that any drug that
has a chemical structure or properties that are similar to a
scheduled drug can be the subject of prosecution as though the
drug were included in the schedules.
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.<14>
Synthetic cathinones are related to the parent
compound cathinone, one of the psychoactive principals
in khat? Cathinone derivatives are ?. analogues of a
corresponding phenethylamine. The group includes
several substances that have been used as active
pharmaceutical ingredients ? Since the mid-2000s,
unregulated ring-substituted cathinone derivatives
have appeared in the European recreational drugs
market. The most commonly available cathinones sold
on the recreational market in the period up to 2010
appear to be mephedrone (Figure 3) and methylone.
[The drugs]? are claimed to have effects similar to
those of cocaine, amphetamine or MDMA, but little is
----------------------
<12>
http://www.monitoringthefuture.org//pubs/monographs/mtf-overview2
014.pdf
<13>
http://www.drugpolicy.org/sites/default/files/FactSheet_Salvia.pd
f
<14>
http://www.emcdda.europa.eu/publications/drug-profiles/synthetic-
cathinones
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known of their detailed pharmacology. Apart from
cathinone [and other specified chemicals]. cathinone
derivatives are not under international control.
?Like cocaine, the resulting 'high' of mephedrone is
short-lived. Consequently, users may consume several
doses in succession. ?[Specified chemical
alterations] could [create] more potent [drugs]. It
should be noted that?PMA and PMMA are known to have a
particularly high toxicity, and this property might
translate to their analogues.
As noted above, cathinone is the main psychoactive chemical in
the khat plan. Use of khat in the United States has grown in
recent decades. The New York State Office of Alcohol and
Substance Abuse Services produces research and educational
material about drugs. The office has published the following
discussion of khat:<15>
Khat has been grown for use as a stimulant for
centuries in the Horn of Africa and the Arabian
Peninsula. There, chewing khat predates the use of
coffee and is used in a similar social context. Its
fresh leaves and tops are chewed or?consumed as tea,
[producing] euphoria and stimulation. The stimulant
effect is most effective when the leaves are still
fresh.
Khat use has traditionally been confined to the
regions where khat is grown, because only the fresh
leaves have the desired? effects. In recent years
improved [transportation] has increased the global
distribution.
?In 1975, the [chemical] cathinone was isolated [from
khat]. Cathinone is not very stable and breaks down
to produce cathine and norephedrine. These chemicals
belong to the PPA (phenylpropanolamine) family, a
----------------------
<15> http://www.oasas.ny.gov/AdMed/FYI/khat.cfm
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subset of the phenethylamines related to amphetamines
and the catecholamines, epinephrine and
norepinephrine.
8. Previous Similar Bill - SB 1283 (Galgiani) Ch. 372, Statutes
of 2014
In 2014, the committee heard another bill - SB 1283 - concerning
synthetic cannabinoids and synthetic cathinone drugs. SB 1283
becomes effective in 2016. SB 1283 was amended in this
committee to reflect the same basic penalty structure as in this
bill. That is, a first offense is an infraction, punishable by
a fine of up to $250. A second offense is an infraction or a
misdemeanor. A third or subsequent offense is a misdemeanor.
However, the bill included novel provisions concerning the
education and treatment of defendants found to be in possession
of a listed synthetic drug. The amendments (stripped from the
bill in the Assembly) provided that a defendant could elect to
participate in an education program. If the defendant
successfully completed the education program, the fine that he
or she paid would be returned. The bill included community
services provisions and made defendants eligible for the
Substance Abuse and Crime Prevention Act (SACPA) - Proposition
36 of 2000.
SB 1283 requested the UCLA Luskin School of Public Affairs to
design the education program or designate another entity to do
so. The Luskin School houses a respected concentration in Crime
and Drug Control Policy. The bill further directed the Judicial
Council to approve and help implement the education program. In
Senate Appropriations, the bill was narrowed and implementation
delayed until 2016. In the Assembly, the misdemeanor provisions
and the education program were stricken from the bill.
Possession of a specified synthetic cannabinoid or specific
synthetic stimulant was simply defined as infractions. The bill
was chaptered in this form, including delayed implementation
until 2016. Thus, the provisions of SB 1283 have not gone into
effect.
9. Proposition 36 of 2000, the Substance Abuse and Crime
Prevention Act
SACPA requires any person convicted of non-violent possession of
any substance included in the controlled substance schedules to
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be offered treatment on probation, with no jail sanctions.
Defendants convicted of possession of a specified synthetic
cannabinoid or a specified synthetic stimulant will not be
eligible for SACPA if this bill or SB 1283 becomes effective.
The specified chemicals or drugs are not included in the
controlled substance schedules, but are separately listed or
described in the sections defining crimes for commerce in or
possession of these chemicals.
10. Drug Treatment in the Court System
Recent research has considered the effectiveness of varying
forms of court-based drug treatment with other forms or sources
of treatment demand.<16> UCLA studies of the effectiveness of
SACPA - Proposition 36 of 2000 were released in 2003 and
2006.<17> SACPA requires drug treatment without incarceration
for non-violent drug possession. UCLA found that the SACPA
model was as effective as drug court or voluntary treatment
models and produced $2.50 in savings from every dollar spent.
Improvements in funding allocations and programs would have
produced better results.
State funding for SACPA ended in 2006. Individual counties must
bear the costs of the program. The California Society of
Addiction Medicine has more recently found that SACPA produced
positive results, including for participants who did not
complete the full program.
An extensive 2007 study of 474 drug offenders in drug court in
Maricopa County Arizona (the Phoenix area) compared the outcomes
in drug court treatment for persons who were subject to jail
sanctions against those who were not subject to sanctions. The
study found that the threat of jail sanctions did not affect the
participant's rate of retention in or completion of the program.
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<16> Much of the basis for this comment is a report or monograph
written by Senate Fellow, Bethany Renfree at the request of
Senator Jackson.
<17>
http://www.uclaisap.org/prop36/documents/sacpa_costanalysis.pdf
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11. Drug Treatment Issues Raised by this Bill - Proposals of
the Sponsor
Representatives of the sponsor of this bill - the California
Narcotics Association - have argued that that treatment for
users of the drugs included in this bill is essential.
Representatives have suggested or considered implementation of a
pre-guilty plea treatment program. Under such a program, a
person arrested for misdemeanor possession of a specified
synthetic drug or chemical would be offered treatment for a
specified amount of time, with no necessity of a guilty plea.
If the person completed the program, the arrest would be deemed
to have never occurred. Those who fail in the treatment program
would face prosecution.
It has been widely emphasized by experts in drug abuse and
treatment that drug dependence or addiction is a chronically
relapsing condition, similar to obesity or diabetes in this
respect.<18> It is to be expected that a person in treatment
for drug dependence will relapse and use the drug of dependence
or another drug. Such relapses do not mean that the person is
not benefiting from treatment. It appears that treatment is
cumulative, such that what appear to be initial failures in
treatment contribute to success or substantial progress over
time. If a pre-plea treatment is implemented by this bill, it
is suggested that the governing statute or statutes include a
legislative finding that drug dependence is a chronically
relapsing condition and that positive tests for use of a drug
shall not be grounds for dismissal from the program if there are
other signs of progress or positive changes from the program.
For example, a history of less frequent relapses with success or
progress by the treatment participant in employment, training,
education or family responsibilities and relations would
indicate that treatment is beneficial.
Procedurally, it appears that defendants arrested for being in
possession of a synthetic cannabinoid or a specified synthetic
stimulant could be deemed eligible for participation in a
pre-plea diversion program, as described in Penal Code Section
1000.5. Such a provision would face two problems: 1) Existing
Penal Code Section 1000.5 excludes from participation any person
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<18>
http://www.drugabuse.gov/publications/media-guide/science-drug-ab
use-addiction-basics
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who has a prior drug conviction, any person who did not
completed a previous deferred entry of judgment (DEJ) or
diversion program, any person who had his or her probation or
parole revoked, and person has a prior felony conviction within
the previous five years, or any person whose crime involved
violence or a threat of violence. 2) Pre-plea diversion is only
available in a county where the presiding judge, the district
attorney and the public defender all agree to implementation of
the program. Most counties only use a DEJ program, as described
in Penal Code Section 1000. In DEJ, the defendant must plead
guilty. Judgment is then deferred while the defendant
participates in a treatment, education and rehabilitation
program. If the defendant successfully completes the program,
the conviction and arrested are stricken. Otherwise, judgment
is entered and sentence imposed.
The exclusions in existing DEJ and diversion statutes would
cover a wide range of persons who have participated in a prior
drug treatment programs through a court or on supervision. As
noted above, it should be expected that persons in treatment
will relapse and use a prohibited drug. It is perhaps likely
that those who successfully complete a DEJ or diversion program
under existing law are not truly drug-dependent.
To address concerns that existing standards for DEJ or diversion
would exclude very many people who would benefit from treatment,
the bill could provide that a person arrested for possession of
a synthetic cannabinoid or synthetic stimulant is not eligible
for the program if any of the following circumstances apply: The
underlying crime involved violence or the threat of violence.
The person's supervision status in a probation, parole,
mandatory supervision or post-release community supervision has
been revoked for a violation that is not directly related to the
use of a prohibited drug or controlled substance. The person
has been convicted of a felony that did not solely involve
possession or use of a controlled substance or prohibited drug
in the past five years. The defendant has been convicted of a
crime for which sex offender registration is required, or the
defendant has a history of violence. The court finds by clear
and convincing evidence that the person is unamenable to any and
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all forms of drug treatment.<19>
The bill could provide that pre-plea diversion for persons
covered by this bill shall be provided, regardless of whether
the county has a current pre-plea diversion program. It appears
that the treatment, education and rehabilitation programs for
persons placed in either DEJ or diversion programs would be the
same. A person who does fail in the diversion program would
face prosecution. As noted above, he or she would not be
eligible for SACPA/Proposition 36, as the drugs covered by this
bill are not included in the controlled substance schedules.
The bill could provide that if the participant's continued drug
use - as shown by multiple positive drug tests - creates a
current and ongoing likelihood of material harm to the
participant or others, the participant can be dismissed from the
program or found not to have successfully completed the program.
Committee members may wish to consider the proposal of the
sponsor to create a pre-plea diversion program for persons who
arrested pursuant to this bill. The discussion above could guide
drafting of the program.
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<19> The fact that a defendant is unamenable to any and all
forms of drug treatment is an factor of exclusion under
SACPA. (Pen. Code § 1210.1, subd. (b)(5).)