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.
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<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
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<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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