BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

          Bill No:    SB 966        Hearing Date:    April 5, 2016    
          
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          |Author:    |Mitchell                                             |
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          |Version:   |February 8, 2016                                     |
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          |Urgency:   |No                     |Fiscal:    |No               |
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          |Consultant:|JM                                                   |
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           Subject:  Controlled Substances:  Sentence Enhancements:  Prior  
 
                                     Convictions



          HISTORY

          Source:   Californians United for a Responsible Budget; Drug  
                    Policy Alliance; Ella Baker Center for Human Rights

          Prior Legislation:AB 2320 (Condit) - Ch. 1398, Stats. of 1985

          Support:  American Civil Liberties Union of California; American  
                    Friends Service Committee; Arts for Incarcerated Youth  
                    Network; Bay Area Black Worker Center; California  
                    Attorneys for Criminal Justice; California Coalition  
                    for Women Prisoners; California Partnership;  
                    California Public Defenders Association; Californians  
                    for Safety and Justice; Center for Health Justice;  
                    Center for Living and Learning; Center on Juvenile and  
                    Criminal Justice; Centro Legal de la Raza; Communities  
                    United for Restorative Youth Justice; Courage  
                    Campaign; Critical Resistance Los Angeles; Fathers &  
                    Families of San Joaquin; Forward Together; Friends  
                    Committee on Legislation; HealthRIGHT360; Healthy  
                    Communities Inc.; HIV Education and Prevention Project  
                    of Alameda County; Human Rights of the Incarcerated  
                    Coalition; Islamic Shura Council of Southern  








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                    California; Justice Now; Justice Policy Institute; Law  
                    Enforcement Against Prohibition; Lawyers' Committee  
                    for Civil Rights, S.F.; Legal Services for Prisoners  
                    with Children; Los Angeles Community Action Network;   
                    Monterey Bay Central Labor Council, AFL-CIO; Mortgage  
                    Personnel Services; National Center for Youth Law; A  
                    New Way of Life; Oakland Rising; Prison Activist  
                    Resource Center; Prison Law Office; Prison Policy  
                    Initiative; Project Inform; RYSE; San Diego Organizing  
                    Project; Silicon Valley Debug; Transgender,  
                    Gender-variant, Intersex Justice Project; W. Haywood  
                    Burns Institute; Women's Council of the California  
                    Chapter of the National Association of Social Workers;  
                    Women's Foundation of California; Young Women's  
                    Freedom Center; 2 individuals

          Opposition:Association for Los Angeles Deputy Sheriffs;  
                    Association of Deputy District Attorneys;  California  
                    Association of Code Enforcement Officers; California  
                    College and University Police Chiefs Association;  
                    California Narcotic Officers Association; California  
                    District Attorneys Association; California Police  
                    Chiefs Association; Los Angeles County Professional  
                    Peace Officers Association; Los Angeles Police  
                    Protective League; Peace Officers Research Association  
                    of California; Riverside Sheriffs Association;  
                    International Faith Based Coalition; California State  
                    Sheriffs' Association

                                                


          PURPOSE

          The purpose of this bill is to repeal the current enhancement  
          for specified drug commerce crimes under which a defendant  
          receives an additional term of three years for each prior  
          conviction of any one the listed crimes.

          Existing law classifies controlled substances in five schedules  
          according to their medical utility and potential for abuse.   
          Schedule I controlled substances are deemed to have no accepted  
          medical uses and cannot be prescribed.  Examples of drugs in the  
          California Schedule include the following:









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                 Cocaine, heroin and marijuana are Schedule I drugs.
                 Methamphetamine, oxycodone and codeine are Schedule II  
               drugs.
                 Barbiturates (tranquilizers, anabolic steroids and  
               specified narcotic, pain medications are Schedule III  
               drugs.
                 Benzodiazepines (Valium) and phentermine (diet drug) are  
               Schedule IV drugs.
                 Specified narcotic pain medications with active  
               non-narcotic active ingredients are Schedule V drugs.   
               (Health & Saf. Code §§ 11054-11058.)  

          Existing law provides penalties for possession, possession for  
          purposes of sale, and manufacturing of controlled substances.   
          Sentences for drug offenses are typically subject to Penal Code  
          Section 1170 (h).  Convicted defendants serve felony sentences  
          in county jails, unless disqualified by prior serious felony  
          convictions or by being a registered sex offender.   (Health &  
          Saf. Code §§ 11350-11401.)

          Existing law includes a myriad of enhancements for controlled  
          substance crimes. These include enhancements for drug crimes  
          that involve of affect minors, for the weight or volume of the  
          substance and prior drug-crime convictions.  (See. Health & Saf.  
          Code §§ 11370.2, 11370.4, 1353.4, 11353.6, subd. (b), and  
          11379.7.)

          Existing law provides that where a person is convicted in a  
          current case of one of a list of specified drug commerce crimes,  
          and the person has been previously convicted of any of these  
          crimes, he or she shall receive a sentence enhancement of three  
          years for each prior conviction, to be served in jail unless the  
          defendant is disqualified from a jail term by prior serious  
          felony convictions or sex offender registration, or another  
          statute requires a prison term.  (Health & Saf.  § 11370.2.)   
          The enhancement covers a conviction for conspiracy to commit any  
          of the listed crimes.  The qualifying offenses are as follows.   
          All statutory references in the list are to the Health and  
          Safety Code:

                 Possession for sale of cocaine, heroin, specified  
               opiates or other specified drugs - § 11350
                 Possession for sale of cocaine base - § 11351.5









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                 Possession for sale of cocaine, heroin, specified  
               opiates and other specified drugs - § 11351
           Sale, distribution or transportation of cocaine, cocaine base  
            heroin, specified opiates - § 11352
                 Possession for sale of methamphetamine or specified  
               other drugs - § 11378
                 Sale, distribution or transportation of methamphetamine  
               or specified other drugs - § 11379
                 Possession for sale of PCP - § 11378.5
                 Sale, distribution or transportation of PCP - § 11379.5
           Manufacturing any controlled substance through chemical  
            extraction or synthesis - §  11379.6
           Manufacturing any controlled substance through chemical  
            extraction or synthesis, with an enhancement based on the  
            weight of the substance containing the drug - § 11379.8
                 Using a minor in the commission of specified drug  
               offenses - § 11380
                 Possession of precursor chemicals with intent to  
               manufacture PCP - § 11383

          This bill repeals the three-year sentence enhancement for each  
          of a defendant's prior convictions for one of a list of drug  
          commerce crimes, where the defendant is convicted in the current  
          case of another such crime.  

                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the past several 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,









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                 137.5% of design bed capacity by February 28, 2016. 

          In December of 2015 the administration reported that as "of  
          December 9, 2015, 112,510 inmates were housed in the State's 34  
          adult institutions, which amounts to 136.0% of design bed  
          capacity, and 5,264 inmates were housed in out-of-state  
          facilities.  The current population is 1,212 inmates below the  
          final court-ordered population benchmark of 137.5% of design bed  
          capacity, and has been under that benchmark since February  
          2015."  (Defendants' December 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).)  One  
          year ago, 115,826 inmates were housed in the State's 34 adult  
          institutions, which amounted to 140.0% of design bed capacity,  
          and 8,864 inmates were housed in out-of-state facilities.   
          (Defendants' December 2014 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 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.










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          COMMENTS

          1.Need for This Bill

          According to the author:

               SB 966 - the RISE Act will begin undoing the damage of  
               the failed War on Drugs. Long sentences that were  
               central to the drug war strategy utterly failed to  
               reduce drug availability or the number of people  
               harmed in the illicit drug market.  Controlled  
               substances are now cheaper and more widely available  
               than ever before, despite a massive investment of tax  
               revenue and mass incarceration that has devastated  
               low-income communities of color.

               The RISE Act will free up taxpayer dollars for  
               investment in community-based treatment programs  
               instead of costly jail expansion.  Since 2007,  
               California has spent $2.2 billion on county jail  
               construction - not including the costs borne by the  
               counties for construction and increased staffing, or  
               the state's debt service.  Sheriffs have argued for  
               expansion by pointing to their growing jail  
               populations, particularly people with long sentences  
               and with mental health and substance use needs. By  
               reducing sentences for people with prior drug  
               convictions, SB 966 will diminish this rationale for  
               jail expansion, allowing state and county funds to be  
               invested in programs and services that truly improve  
               public safety, including community-based mental health  
               and substance use treatment, job programs, and  
               affordable housing. 

               The RISE Act will reduce racial disparities in the  
               criminal justice system.  Enhancements based on prior  
               drug convictions exacerbate racial disparities.  
               Although rates of drug use and selling are comparable  
               across racial lines, people of color are far more  
               likely to be stopped, arrested and incarcerated for  
               drug law violations than are whites.  Prosecutors are  
               twice as likely to seek an enhanced sentence for a  
               black defendant as for a white defendant charged with  









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               the same offense.

               The RISE Act would reduce unjust prosecutorial power.  
               Prosecutors use enhancements as leverage to extract  
               guilty pleas. They have complete discretion as to what  
               charges they bring, including enhancements based on  
               prior drug convictions.  Prosecutors can coerce people  
               into pleading guilty by offering to reduce the charges  
               they would face at trial.  Human Rights Watch observes  
               that "plea agreements have ?become an offer drug  
               defendants cannot afford to refuse."

               The RISE Act would enhance community safety.  Longer  
               sentences for drug offenses do not reduce recidivism,  
               nor do they deter crime - most people are unaware of  
               penalties or think they will be not be caught.    
               Incarceration does not reduce crime by incapacitating  
               people who sell drugs at the street level.  Research  
               shows that people selling retail-level drugs are  
               quickly replaced as long as the demand for a drug  
               remains high.  Incarceration can reduce public safety  
               by destabilizing families and communities.  Released  
               inmates face extreme barriers in finding jobs and  
               housing.  Family members of incarcerated people also  
               struggle with overwhelming debt from court costs,  
               visitation and telephone fees, and diminished family  
               revenue.

               Sentence enhancements based on prior convictions  
               target the poorest and most marginalized people in our  
               communities - those with substance use and mental  
               health needs, and those who, after prior contact with  
               police or imprisonment, have struggled to integrate  
               into free society. 

               The RISE Act is urgently needed. Counties around the  
               state are building new jails to imprison more people  
               with long sentences, funneling money away from  
               community-based programs and services. People with  
               drug issues, particularly those in low-income  
               communities of color, are increasingly left with the  
               choice of seeking help in a jail or not seeking help  
               at all.










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          2.History of the Enhancement for Prior Drug Crimes



          The enhancement for prior drug crime convictions was enacted  
          through AB 2320 (Condit), Chapter 1398, Statutes of 1985.  The  
          bill included un-codified legislative intent "to punish more  
          severely those persons who are in the regular business of  
          trafficking in, or production of, narcotics and those persons  
          who deal in large quantities of narcotics as opposed to  
          individuals who have a less serious, occasional, or relatively  
          minor role in this activity."



          The bill - called "The Dealer Statute" - was sponsored by the  
          Los Angeles District Attorney and also included enhancements  
          based on the weight of the drug involved in specified drug  
          commerce crime.  The weight enhancement is found in Health and  
          Safety Code Section 11370.4.  The Senate Judiciary Committee  
          analysis of the bill set out the sponsor's explanation that the  
          bill was modeled on particularly harsh federal drug crime laws.   
          The sponsor argued that the bill was necessary to eliminate an  
          incentive for persons "to traffic [in drugs] in California where  
          sentences are significantly lighter than in federal law."



          The federal laws to which the sponsor referred were those  
          enacted in the expansion of the so-called war against drugs  
          during the Reagan administration.   President Reagan announced  
          his initiative<1> in October of 1982, at a time when Columbian  
          cocaine "cartels" were becoming powerful. <2>  Nancy Reagan  
          announced her "Just Say No" campaign in July of 1984.  These  
          federal laws included reduced judicial discretion, including  
          through mandatory minimum sentences.  The current administration  
          has begun to pull back on some of the harshest policies and  
          Congress has passed some sentence reductions, most notably  
          reducing the disparity between cocaine powder crimes and cocaine  
          base crimes. 



          ---------------------------
          <1> http://www.presidency.ucsb.edu/ws/?pid=43085
          <2> http://www.npr.org/templates/story/story.php?storyId=9252490








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          3.  Research on Sentences and Sentences Increases as Deterrents  
          to Crime

          Criminal justice experts and commentators have noted that, with  
          regard to sentencing, "a key question for policy development  
          regards whether enhanced sanctions or an enhanced possibility of  
          being apprehended provide any additional deterrent benefits.

               Research to date generally indicates that increases in  
               the certainty of punishment, as opposed to the  
               severity of punishment, are more likely to produce  
               deterrent benefits.<3>

          A comprehensive report published in 2014, entitled The  
          Growth of Incarceration in the United States, discusses the  
          effects on crime reduction through incapacitation and  
          deterrence, and describes general deterrence compared to  
          specific deterrence:

               A large body of research has studied the effects of  
               incarceration and other criminal penalties on crime.   
               Much of this research is guided by the hypothesis that  
               incarceration reduces crime through incapacitation and  
               deterrence. Incapacitation refers to the crimes  
               averted by the physical isolation of convicted  
               offenders during the period of their incarceration.   
               Theories of deterrence distinguish between general and  
               specific behavioral responses. General deterrence  
               refers to the crime prevention effects of the threat  
               of punishment, while specific deterrence concerns the  
               aftermath of the failure of general deterrence-that  
               is, the effect on reoffending that might result from  
               the experience of actually being punished.  Most of  
               this research studies the relationship between  
               criminal sanctions and crimes other than drug  
               offenses.  A related literature focuses specifically  
               on enforcement of drug laws and the relationship  
               between those criminal sanctions and the outcomes of  
               ----------------------
          <3>   Valerie Wright, Ph.D., Deterrence in Criminal Justice  
          Evaluating Certainty vs. Severity of Punishment (November 2010),  
          The Sentencing Project  
          (http://www.sentencingproject.org/doc/Deterrence%20Briefing%20.pd 
          f.)








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               drug use and drug prices.<4>

          In regard to deterrence, the authors note that in "the  
          classical theory of deterrence, crime is averted when the  
          expected costs of punishment exceed the benefits of  
          offending. Much of the empirical research on the deterrent  
          power of criminal penalties has studied sentence  
          enhancements and other shifts in penal policy. . . .

               Deterrence theory is underpinned by a rationalistic  
               view of crime.  In this view, an individual  
               considering commission of a crime weighs the benefits  
               of offending against the costs of punishment.  Much  
               offending, however, departs from the strict decision  
               calculus of the rationalistic model.  Robinson and  
               Darley (2004) review the limits of deterrence through  
               harsh punishment.  They report that offenders must  
               have some knowledge of criminal penalties to be  
               deterred from committing a crime, but in practice  
               often do not."<5>

          The authors of the 2014 report discussed above conclude  
          that incapacitation of certain dangerous offenders can have  
          "large crime prevention benefits," but that incremental,  
          lengthy prison sentences are ineffective for crime  
          deterrence:

               Whatever the estimated average effect of the  
               incarceration rate on the crime rate, the available  
               studies on imprisonment and crime have limited utility  
               for policy. The incarceration rate is the outcome of  
               policies affecting who goes to prison and for how long  
               and of policies affecting parole revocation.  Not all  
               policies can be expected to be equally effective in  
               preventing crime.  Thus, it is inaccurate to speak of  
               the crime prevention effect of incarceration in the  
               ----------------------
          <4>   The Growth of Incarceration in the United States (2014),  
          Jeremy Travis, Bruce Western and Steve Redburn, Editors,  
          Committee on Causes and Consequences of High Rates of  
          Incarceration, The National Research Council, p. 131 (citations  
          omitted)  
          (http://johnjay.jjay.cuny.edu/nrc/NAS_report_on_incarceration.pdf 
          ,)
          <5>   Id. at 132-133.








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               singular. Policies that effectively target the  
                                                 incarceration of highly dangerous and frequent  
               offenders can have large crime prevention benefits,  
               whereas other policies will have a small prevention  
               effect or, even worse, increase crime in the long run  
               if they have the effect of increasing postrelease  
               criminality.

          DO SEVERE SENTENCE ENHANCEMENTS, SUCH THE ENHANCEMENT FOR A  
          PRIOR DRUG CRIMES THAT WOULD BE REPEALED BY THIS BILL,  
          DISCOURAGE PERSONS FROM DRUG COMMERCE RECIDIVISM?



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