BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 333 Hearing Date: April 28, 2015
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|Author: |Galgiani |
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|Version: |April 20, 2015 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|JM |
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Subject: Controlled Substances
HISTORY
Source: California District Attorneys Association
Prior Legislation:None
Support: Association for Los Angeles Deputy Sheriffs;
California College and University Police Chiefs
Association; California Correctional Supervisors
Organization; California Narcotic Officers
Association; Los Angeles Police Protective League;
Peace Officers Research Association of California;
Riverside Sheriffs Association; Crime Victims United
of California; San Bernardino County Sheriff;
California Insurance Commissioner Dave Jones
Opposition:Ella Baker Center for Human Rights; Legal Services
for Prisoners with Children
PURPOSE
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The purpose of this bill is to provide that possession of
gamma-Hydroxybutyric acid (GHB), flunitrazepam (Rohypnol), or
ketamine with the intent to commit a sex crime, as defined, is a
felony, punishable by a prison term of sixteen months, two years
or three years.
Existing law provides that the possession of specified
controlled substances including ketamine, flunitrazepam, and
GHB, unless upon the prescription of a physician, dentist,
podiatrist, or veterinarian licensed to practice in this state,
is a misdemeanor punishable by up to one year in a county jail,
except for a person who has one or more prior convictions for a
specified violent felony or has been convicted of a prior
offense requiring the person to register as a sex offender, then
the penalty shall be a felony. (Health & Saf. Code, §§ 11350,
subd. (a) and 11377, subd. (a).)
Existing law classifies controlled substances in five schedules
according to their danger and potential for abuse. Schedule I
controlled substances have the greatest restrictions and
penalties, including prohibiting the prescribing of a Schedule I
controlled substance. (Health & Saf. Code, §§ 11054 to 11058.)
Existing law states, except as provided, that every person who
possesses for sale or purchases for purposes of sale any of the
specified controlled substances, including cocaine and heroin,
shall be punished by imprisonment in a county jail for two,
three, or four years. (Health & Saf. Code, § 11351.)
Existing law provides that every person that transports, imports
into the state, sells, furnishes, administers, or gives away, or
offers to transport, import into the state, sell, furnish, or
give away, or attempts to import into this state or transport
cocaine, cocaine base, or heroin, or other specified controlled
substances listed in the controlled substance schedule, without
a written prescription from a licensed physician, dentist,
podiatrist, or veterinarian shall be punished by imprisonment
for three, four, or five years. (Health & Saf. Code, § 11352,
subd. (a).)
Existing law states that the possession for sale of
methamphetamine, and other specified controlled substances is
punishable by imprisonment in a county jail for 16 months, two
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or three years. (Health & Saf. Code, § 11378.)
Existing law provides that every person that transports, imports
into the state, sells, furnishes, administers, or gives away, or
offers to transport, import into the state, sell, furnish, or
give away, or attempts to import into this state or transport
methamphetamine, or other specified controlled substances
listed in the controlled substance schedule, without a written
prescription from a licensed physician, dentist, podiatrist, or
veterinarian shall be punished by imprisonment for two, three,
or four years. (Health & Saf. Code, § 11379, subd. (a).)
Existing law states that every person guilty of administering to
another any chloroform, ether, laudanum, or any controlled
substance, anesthetic, or intoxicating agent, with intent
thereby to enable or assist himself or herself or any other
person to commit a felony, is guilty of a felony punishable by
imprisonment in the state prison for 16 months, or two or three
years. (Pen. Code, § 222.)
Existing law states that rape is an act of sexual intercourse
accomplished where a person is prevented from resisting by any
intoxicating or anesthetic substance, or any controlled
substance, and this condition was known, or reasonably should
have been known, by the accused. (Pen. Code, §§ 261, subd.
(a)(3); 262, subd. (a)(2).)
Existing law specifies felony penalties for any person who
commits an act of sodomy, oral copulation or sexual penetration
where the victim is prevented from resisting by any intoxicating
or anesthetic substance, or any controlled substance, and this
condition was known, or reasonably should have been known, by
the accused. (Pen. Code, §§ 286, subd. (i); 288a, subd. (i);
289, subd. (e).)
This bill provides that a person who possesses
gamma-Hydroxybutyric acid (GHB), ketamine or flunitrazepam, also
known by the trade name Rohypnol, with the intent to commit
sexual assault, as defined, is guilty of a felony, punishable by
imprisonment in state prison for 16 months, or two or three
years.
This bill defines "sexual assault" for the purposes of this bill
to include, but not be limited to, violations of specified
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provisions related to sexual assault committed against a victim
who is prevented from resisting by an intoxicating or anesthetic
substance, or any controlled substance.
This bill states the finding of the Legislature that in order to
deter the possession of ketamine, GHB, and Rohypnol by sexual
predators and to take steps to prevent the use of these drugs to
incapacitate victims for purposes of sexual exploitation, it is
necessary and appropriate that an individual who possesses one
of these substances for predatory purposes be subject to felony
penalties.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
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
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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, 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:
In November 2014, Proposition 47 was approved by
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voters to reclassify many crimes that were previously
eligible to be charged as either as a felony, or a
misdemeanor, as solely misdemeanors, unless the
defendant had a prior sex crime or specified violent
felony conviction. This included reducing the
penalties for the illegal possession of the drugs
Rohypnol and GHB -commonly known as 'date rape' drugs.
The law enforcement community and sexual assault
survivor advocate organizations have expressed concern
over this change and how it could potentially weaken
current sexual assault laws.
Originally, Senate Bill 333 would have restored
wobbler status for the simple possession of these
drugs. However, after working with concerned parties
I have amended the bill to create a new felony crime
of possession with the intent to commit sexual assault
for the commonly known date rape drugs of Rohypnol,
GHB and ketamine. This will allow prosecutors to
bring felony charges against a perpetrator who has
been found in possession of these drugs and has taken
steps to use them to facilitate a sexual assault.
Given the difficult nature of prosecuting sexual
assault crimes, California should embrace this
opportunity to provide serious consequences for
criminals looking to use date rape drugs to facilitate
a heinous crime. Senate Bill 333 recognizes that date
rape drugs can be used as a tool for sexual predators
and if they are used for this purpose, there must be a
instrument available for prosecutors to charge them
accordingly.
2.Difference Between Possession of a Drug with Intent to Commit
a Sex Crime and an Attempted Sex Crime
An attempt is the intent to commit a crime and an affirmative,
yet unsuccessful, step towards committing the crime. For the
crime to be an attempt, the intended crime would have been
committed had some circumstance not intervened. "Mere
preparation" towards commission of a crime is not an affirmative
step. (People v. Breverman (1998) 19 Cal.4th 142, 154; CALCRIM
406.)
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The crime defined in this bill - possession of a specified drug
with intent to commit a sexual assault - would allow conviction
of defendants who did not go beyond preparation. For example,
the defendant told his companions at a bar that he wanted to
drug a woman and have sex with her. He talks to the woman for a
while and then puts a drug in her drink. Her friends intervene
when the defendant tries to get the now extremely intoxicated
woman to leave the bar with him. This could be described as
preparation to commit a sex crime, not a direct step towards
commission of the crime, and thus not an attempt. This conduct
would constitute guilt of possession of a drug with intent to
commit a sex crime.
3.Difference between Conviction of Possession with Intent to
Commit a Sex Crime and Prosecution of a Person Excluded from a
Misdemeanor Prosecution under Proposition 47
Defendants with prior sex offenses are excluded from the
misdemeanor drug possession provisions in Proposition 47.
However, if an excluded defendant's possession of a drug had a
sexual motivation or connection, a simple possession conviction
would not reflect that. Even if the prior was a sex offense,
there would be nothing about the current conviction indicating a
sexual motivation or connection.
In contrast, in a prosecution for possession with intent to
commit a sex crime under this bill, the defendant's prior
convictions and misconduct could be used as evidence of his
intent in the current case. There are limits on the use of
prior convictions as proof of a current crime, but prior
convictions are admissible to show a defendant's intent, motive
or knowledge. (People v. Ewoldt (1994) 7 Cal.4th 380, 393-394;
CALCRIM 375.) Nevertheless, jurors find prior convictions for
a similar offense to the one charged to be very powerful
evidence. Evidence of prior convictions is restricted because
the evidence is so convincing. The main restriction is that the
jury can't simply find that the prior conviction itself
establishes guilt in the current offense. However, as many
defendants find - as a practical matter, consideration of a
prior conviction or prior bad conduct as proof of intent very
often leads to a conviction in the current case.
4.Use of Ketamine, Flunitrazepam or GHB for Prescription
Medications, Self-Medication and Intoxication
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Ketamine is an anesthetic-dissociative drug. It appears to be
the drug of choice in pediatric surgery and pediatric emergency
pain management, as it blocks the sensation of pain without full
unconsciousness and depressed respiration.<1><2> Ketamine is
very widely used in African and other countries with low
per-capita income levels, as it is effective, cheap and safe.
Greater restrictions of ketamine manufacturing and distribution
have caused great alarm in Africa among physicians and public
health experts.<3>
Ketamine has recently been used as an "off label" drug for the
treatment of depressions. Patients report that they lose their
depressive symptoms quickly and the effect lasts for months.<4>
Clinical trials have been conducted or are underway for use of
ketamine as a formally recognized depression treatment. The
results of the trials have been remarkably positive.<5><6>
Ketamine is used for intoxication or mind-altering experiences.
Users seek the dissociative experience that would be considered
an unwanted or problematic side effect in medial use. Users
lose awareness of their surroundings and report vivid
hallucinations. Some people found them profound and
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<1> http://www.ncbi.nlm.nih.gov/pubmed/18645539
<2>
http://emupdates.com/wp-content/uploads/2011/01/ACEP-Ketamine-Gui
deline-2011.pdf
<3>
http://www.theguardian.com/world/2015/feb/27/raver-drug-ketamine-
control-plan-at-un-condemned-as-potential-disaster
<4>
http://www.nytimes.com/2014/12/10/business/special-k-a-hallucinog
en-raises-hopes-and-concerns-as-a-treatment-for-depression.html?_
r=0
<5> http://www.nimh.nih.gov/about/director/2014/ketamine.shtml
<6> http://www.nimh.nih.gov/health/trials/depression.shtml
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enjoyable,<7> others found the experience disturbing.
GHB is prescribed to narcoleptics to allow them to sleep deeply
at night. It is often used as a so-called "club drug."<8> It
has been described as being similar to alcohol intoxication, but
with more euphoric effects, without a hangover the next day.
However, users' experiences are quite variable.<9> GHB is
dangerous when mixed with alcohol, as both are central nervous
system depressants.
Flunitrazepam is a benzodiazepine, the class of
sedative-hypnotic drugs that include Xanax, valium, and many
others. It was developed in 1965. It has been described as 10
times more potent than Valium, but is typically prescribed in
doses that are 1/10th of that of a common Valium dose. It is
not available legally in the United States, but it is available
around the world. It is the most widely prescribed drug of its
class in Europe.<10> It has been successfully used to treat
alcoholics suffering from delirium tremens during withdrawal.
Flunitrazepam is very widely used by heroin addicts to boost the
effects of the drug without risking overdose, to ease
withdrawal.<11><12> Studies of drug facilitated sexual assault
found examples of women who likely used the drug in connection
with opiate addiction or cocaine use. The University of
Illinois study described in Comment # 7 noted this use of the
drug.
5.Proposition 47
On November 4, 2014, California voters approved Proposition 47 -
the Safe Neighborhoods and Schools Act - which reduced penalties
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<7> https://www.erowid.org/experiences/exp.php?ID=38360
<8> 'The silent 'G'" Contemporary Drug Problems, 2012
<9>
https://www.erowid.org/experiences/subs/exp_GHB.shtml#General
<10> http://www.cesar.umd.edu/cesar/drugs/rohypnol.asp
<11> http://www.ncbi.nlm.nih.gov/pubmed/8102333
<12> http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3454351/
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for certain offenders convicted of nonserious and nonviolent
property and drug crimes. Proposition 47 also allows inmates
serving sentences for crimes affected by the reduced penalties
to apply to be resentenced. According to the California
Secretary of State's web site, 59.6 percent of voters approved
Proposition 47. (See
[as of Mar. 14, 2015].) The purpose of the measure
was "to maximize alternatives for nonserious, nonviolent crime,
and to invest the savings generated from this act into
prevention and support programs in K-12 schools, victim
services, and mental health and drug treatment." (Ballot Pamp.,
Gen. Elec. (Nov. 4, 2014), Text of Proposed Laws, p. 70.) One
of the ways the measure created savings was by requiring
misdemeanor penalties instead of felonies for nonserious,
nonviolent crimes like petty theft and drug possession for
personal use, unless the defendant has prior convictions for
specified violent crimes. (Ibid.)
Four months into its implementation, Proposition 47 has resulted
in fewer inmates in state prisons and county jails. According
to the Legislative Analysts' Office (LAO), "As of January 28,
2015, the inmate population in the state's prisons was about
113,500, or 3,600 inmates below the February 2015 cap, and
slightly below the final February 2016 cap. The expected impact
of Proposition 47 on the prison population will make it easier
for the state to remain below the population cap." (LAO, The
2015-16 Budget: Implementation of Proposition 47 (Feb. 2015), p.
10.) The LAO report also found that Proposition 47 will likely
reduce the costs of criminal justice for counties, by freeing up
jail beds and reducing the time probation departments need to
follow prisoners after they are released. (Id., at p. 17.)
6. California Constitutional Limitations on Amending a Voter
Initiative
Because Proposition 47 was a voter initiative, the Legislature
may not amend the initiative without subsequent voter approval
unless the initiative permits such amendment, and then only upon
whatever conditions the voters attached to the Legislature's
amendatory powers. (People v. Superior Court (Pearson) (2010)
48 Cal.4th 564, 568; see also Cal. Const., art. II, § 10, subd.
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(c).) Courts have a duty to jealously guard the people's
initiative power and, hence, to apply a liberal construction to
this power wherever it is challenged in order that the right to
resort to the initiative process is not improperly annulled by a
legislative body. (Proposition 103 Enforcement Project v.
Quackenbush (1998) 64 Cal.App.4th 1473.) Yet, despite the
strict bar on the Legislature's authority to amend initiative
statutes, judicial decisions have recognized that the
Legislature is not thereby precluded from enacting laws
addressing the general subject matter of an initiative. The
Legislature remains free to address a "related but distinct
area" or a matter that an initiative measure "does not
specifically authorize or prohibit." (People v. Kelly (2010) 47
Cal.4th 1008, 1025-1026.)
Proposition 47 states: "This act shall be broadly construed to
accomplish its purposes. The provisions of this measure may be
amended by a two thirds vote of the members of each house of the
Legislature and signed by the Governor so long as the amendments
are consistent with and further the intent of this act. The
Legislature may by majority vote amend, add, or repeal
provisions to further reduce the penalties for any of the
offenses addressed by this act." (Ballot Pamp., Gen. Elec.
(Nov. 4, 2014), Text of Proposed Laws, p. 74.)
This bill in its original form would have amended Proposition
47's provisions that require misdemeanor penalties for the crime
of drug possession for personal use, by allowing felony
penalties for the drugs covered by this bill. As amended, this
bill does not affect Proposition 47 because this bill no longer
deals with simple possession of drug use. Similar to the
statutes that require specific intent to sell controlled
substances which remain felonies, this bill will require
specific intent to commit sexual assault in order to charge a
defendant with a felony. Because the bill as amended does not
affect Proposition 47, this bill will no longer have to go
before the voters.
7.Drug-Facilitated Sexual Assault Statistics
The limited studies on this issue have found that although a
person may be surreptitiously drugged with Rohypnol, GHB, or
ketamine in order to incapacitate that person, it is much more
common for a person to consume these drugs voluntarily for its
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intoxicating effects.
One study, funded by the National Institute of Justice, examined
the prevalence, nature, and reporting of various types of sexual
assault experienced by college students. (Krebs, et al., The
Campus Sexual Assault Study, National Institute of Justice (Oct.
2007).) The researchers worked with two large, public
universities to collect data from over 6,800 undergraduate
students (5,466 women and 1,375 men). The data indicated that
7.8% of women were sexually assaulted when they were
incapacitated after voluntarily consuming drugs and/or alcohol
and 0.6% were sexually assaulted when they were incapacitated
after having been given a drug without their knowledge. (Id.,
at p. iv; see also § 6-1.) The study found that the majority of
the sexual assault victims that were incapacitated reported
having consumed alcohol (89%) or being intoxicated prior to
being assaulted (82%). (Id., § 5.1.3.)
Another study conducted by the University of Illinois at
Chicago, funded by the U.S. Department of Justice, worked with
four clinics (Texas, California, Minnesota, and Washington
State) to study the prevalence of drugs in sexual assault cases
received by these clinics. (Negruz, et al., Estimate of the
Incidence of Drug-Facilitated Sexual Assault in the U.S, Univ.
of Illinois, Chicago (Nov. 2005).) The study used
self-reporting surveys as well as toxicological analyses of the
subjects. The drugs inquired about in the self-reporting survey
included marijuana, cocaine, and amphetamines. These three
drugs were chosen because they are not normally given
surreptitiously. (Id., at pp. 7-8.) The toxicological analyses
tested for those three drugs, as well as other drugs that are
often considered "date rape drugs" which include Rohypnol, GHB,
ketamine, clonazepam and scopolamine. (Id., at p. 112.) Testing
positive for one of these drugs could be due to several
different reasons: valid prescription use by the subject,
recreational drug use by the subject, surreptitious drug
administration by a potential assailant, or, in the case of GHB,
endogenous levels because GHB exists naturally in the human
body. (Id. at pp. 112-113.)
Among the 144 participants, 61.8% tested positive for one of the
drugs being analyzed in the study. (Negruz, Estimate of the
Incidence of Drug-Facilitated Sexual Assault in the U.S, supra,
at p. 2.) The drugs separated out as "date rape" drugs were
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found in seven subjects (4.86%), of which three had a
prescription. No one admitted to having a prescription for GHB,
or using it recreationally, and GHB was only found in levels
considered to be endogenous - produced by the body naturally.
(Id., at p. 113.) However, the study does note that GHB has a
short detection time of 10-12 hours and because only four
subjects reported to the clinic within 12 hours, if any of the
subjects had been given GHB, the levels would have been
undetectable. (Id., at p. 121.) Ketamine and scopolamine were
not reported to by any of the subjects in the surveys, and were
not found. Flunitrazepam (Rohypnol) was not admitted to by
anyone, but was found in four subjects. (Id., at p. 113.)
However, when tested a second time a week later, some of these
subjects tested positive for flunitrazepam, indicating that the
subjects were self-medicating or using the drug recreationally,
but did not report that in the survey. (Id., at pp. 89, 189.)
The study concluded that most of the subjects testing positive
for these drugs had taken them by their own accord and not
received them surreptitiously. (Id., at p. 189.)
The study also evaluated whether participants truthfully
reported their drug use. The number of subjects who admitted to
taking drugs voluntarily was 40%, as compared to the 61.8% of
subjects who tested positive for one of the analyzed drugs.
(Negruz, Estimate of the Incidence of Drug-Facilitated Sexual
Assault in the U.S, supra, at p. 190.) Researchers hypothesized
that the subjects' under-reporting of their drug usage may be
attributed to the fact that the drugs being analyzed are illegal
and a person may face prosecution for its use, or that the
subjects may have felt that that their recreational use of
illegal drugs could negatively affect the course of a sexual
assault prosecution. (Id., at pp. 16, 190.)
While drug-facilitated sexual assault is a serious problem,
these studies confirm that it occurs most often after an
individual's own recreational use of drugs, rather than
surreptitious drugging by another person. Drugs such as
Rohypnol, ketamine and GHB may be used to facilitate sexual
assault of an incapacitated person, but these are not the only
drugs that can be used, nor are they the most commonly used.
The substance that is most commonly found in sexual assault
victims is alcohol. (Krebs, The Campus Sexual Assault Study,
supra at p. 89; also see Grimes, Alcohol is by far the most
dangerous "date rape drug" (Sept. 22, 2014) The Guardian,
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[as of Mar. 19,
2015].)
This bill targets persons who possess these drugs for predatory
purposes, rather than those who merely possess these drugs for
personal use. This will ensure that victims of these crimes who
may have consumed these drugs voluntarily prior to being
assaulted will not have to fear prosecution of a felony when
deciding whether to report the incident.
8.Proposition 36 of 2000 - the Substance Abuse and Crime
Prevention Act (SACPA)
Proposition 36 of 2000 - the Substance Abuse and Crime
Prevention Act (SACPA) - requires that drug possessors be
offered treatment without jail. Opponents of SACPA argued that
defendants who possessed "date rape" drugs would escape
punishment and scrutiny. That is, these defendants would have
no problem completing drug treatment, since they did not take
the drugs themselves. They would never have a positive drug
test and they would show no outward signs of being sex
offenders. They would have their records cleared - including
the arrest - and be free to commit sex crimes without any
scrutiny. This problem simply did not happen. It appears that
there have been no reports of sexual predators escaping
detection and punishment under SACPA in the 15 years since its
passage.
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