BILL ANALYSIS Ó SB 966 Page 1 Date of Hearing: June 21, 2016 Chief Counsel: Gregory Pagan ASSEMBLY COMMITTEE ON PUBLIC SAFETY Reginald Byron Jones-Sawyer, Sr., Chair SB 966 (Mitchell) - As Amended June 1, 2016 SUMMARY: Limits the current three year enhancement for prior conviction of specified controlled substance offenses to convictions for the manufacture of a controlled substance, or using or employing a minor in the commission of specified controlled substance offenses. EXISTING LAW: SB 966 Page 2 1)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.) 2)Provides that any person convicted of, or conspiracy to commit the sale, furnishing, transportation, or possession for sale of cocaine, cocaine base, heroin, or other specified controlled substances shall, in addition to any other punishment, receive a full, separate, and consecutive three year term of imprisonment in a county jail for each prior conviction for sale, possession for sale, manufacturing, possession with the intent to manufacture specified controlled substances, or using a minor in the commission of specified controlled substance offenses. (Health & Saf. Code, § 11370.2, subd. (a).) 3)Provides that any person convicted of, or conspiracy to commit the sale, possession for sale, the manufacture, possession with the intent to manufacture PCP, or using a minor in the commission of specified offenses related to PCP shall, in addition to any other punishment , receive a full, separate, and consecutive three year term of imprisonment in a county jail for each prior conviction for sale, possession for sale, manufacturing, possession with the intent to manufacture specified controlled substances, or using a minor in the commission of specified controlled substance offenses. (Health & Saf. Code, § 11370.2, subd. (a).) 4)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 SB 966 Page 3 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).) 5)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.) 6)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).) 7)States that the possession for sale of methamphetamine, and other specified controlled substances is punishable by imprisonment in a county jail for 16 months, or two or three years. (Health & Saf. Code, § 11378.) 8)Provides that any person who manufactures, compounds, converts, produces, derives, processes, or prepares specified controlled substances is guilty of a felony, punishable by imprisonment in the state prison for three, five or seven years. (Health & Saf. Code, § 11379.6.) 9)Any person who possesses specified chemicals with the intent to manufacture methamphetamine or PCP shall be punished by two, four, or six years in state prison. (Health & Saf. Code, § 11383.) SB 966 Page 4 FISCAL EFFECT: Unknown COMMENTS: 1)Author's Statement: According to the author, " SB 966 would begin undoing the damage of the failed War on Drugs. Long sentences that were central to the drug war strategy - driven by mandatory sentences like the enhancement SB 966 will repeal - 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 human lives in an unprecedented build-up and fill-up of prisons and jails that have devastated low-income communities of color. "By amending the sentencing enhancement for prior non-violent drug convictions, this bill will improve public safety and community well-being, reduce racial disparities in the criminal justice system, and allow public funds to be invested in community-based programs instead of costly jail expansion. "SB966 would address extreme sentences. Enhancements result in sentences being far more severe than is just, sensible, or effective. Under current law, a person may face two to four years in jail for possessing drugs for sale under the base sentence. But if the person has two prior convictions for possession for sale, they would face an additional six years in jail - for a total of ten years. As of 2014, there were more than 1,700 people in California jails sentenced to more than five years. The leading cause of these long sentences was SB 966 Page 5 non-violent drug sale offenses. "SB 966 would reduce racial disparities in the criminal justice system. Although rates of drug use and sales are comparable across racial lines, people of color are far more likely to be stopped, searched, arrested, prosecuted, convicted, and incarcerated for drug law violations than are whites. Research also shows that prosecutors are twice as likely to pursue a mandatory minimum sentence for Blacks as for whites charged with the same offense. "SB 966 would help restore balance in the judicial process. Prosecutors use enhancements as leverage to extract guilty pleas, even from the innocent. Prosecutors threaten to use enhancements to significantly increase the punishment defendants would face should they exercise their right to a trial. According to Human Rights Watch, "plea agreements have for all intents and purposes become an offer drug defendants cannot afford to refuse." "SB 966 will stop the cruel punishment of persons suffering from a substance abuse disorder. People who suffer untreated substance abuse disorders often sell drugs to pay for the drugs that their illness compels them to consume. It is fundamentally unjust, as well as counterproductive, to put a sick person in jail to address behaviors better handled in a medical or treatment setting." 2)Background: The enhancement for prior drug crime convictions was enacted through AB 2320 (Condit), Chapter 1398, Statutes of 1985). The bill included 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 SB 966 Page 6 Los Angeles District Attorney and also included enhancements based on the weight of the drug involved in specified drug commerce crime. The sponsor explained 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 war against drugs during the Reagan administration. These laws included reduced judicial discretion 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. 3)Argument in Support: According to the American Civil Liberties Union, "SB 966 will repeal the harsh three-year enhancement for prior nonviolent drug offenses. The enhancement, which has failed to protect communities or reduce the availability of drugs, but has crippled state and local budgets and contributed to jail and prison overcrowding, is one of the many enhancements overdue for repeal. "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 reintegrate into society. These and other long sentences, central to the war on drugs, have utterly failed to reduce drug availability or protect people harmed in the illicit drug market, yet they have devastated low-income communities of color, broken up families, and disrupted lives in California and across the country. Despite significant financial investments in criminal prosecutions and imprisonment, controlled substances are now cheaper and more widely available than ever before, and our communities are no safer. SB 966 Page 7 "As a result of California's lengthy sentences, including enhancements like the ones addressed by SB 966, counties around the state are building new jails to imprison people with long sentences. 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 for high-interest loans. Sheriffs have argued for this expansion by pointing to their growing jail populations, particularly people with long sentences and with mental health and substance us needs. However, jail expansion has not improved public safety and has instead funneled money away from the community-based programs and services that have proven to successfully reduce crime. "By reducing sentences for people with prior drug convictions, SB 966 will allow state and county funds to instead be invested in programs and services that meet community needs and improve public safety, including community-based mental health and substance use treatment, job programs, and affordable housing. SB 966 will ease overcrowding in our county jails, making them safer for inmates and jail staff alike. And lastly, SB 966 will start to undo the state's shameful legacy of archaic drug laws that have been used to target communities of color for decades." 4)Argument in Opposition: According to the Office of the San Diego County District Attorney, "Currently, the Office of National Drug Control Policy reports our nation is in the grips of an opioid epidemic, and California is not immune. In 2013, California hospitals treated more than 11,500 patients suffering an opioid or heroin overdose; this is about one overdose every 45 minutes. Now is not the time to reduce penalties for sales and trafficking of opioids. Other states are actually increasing the penalties for trafficking in certain opioids. Legislation aimed at funding educational and prevention programs to reduce the current opioid addiction epidemic would better serve all Californians. SB 966 Page 8 "SB 966 repeals the current three year sentence enhancement for defendants convicted of specified drug sales and possession for sale crimes who have prior convictions for drug sales or possession for sale offenses. The scenario we will face is one where a defendant with multiple convictions for drug sales or possession for sale, or drug manufacturing offenses would be treated the same as a first time offender. This would include reducing the sentences for those who knowingly manufacture "Norco" pills laced with fentanyl, an opiate about 100 times stronger than heroin. The first time offender may need education or treatment for opioid addiction, while the defendant with multiple convictions for sales should receive punishment. "Heroin addiction has spiked in recent years, especially for counties along the U.S. - Mexico border. In 2014, more than 300 San Diegans died from heroin overdoses, and the percentages of men and women booked into county jail who tested positive for heroin or other opiates were the highest since tracking began in 2000. The problem is severe enough locally that patrol deputies in the San Diego Sheriff's Department are now equipped to administer a drug that counteracts the effects of heroin and other opioids. Overall, experts say heroin use in San Diego County is at its highest rate in 15 years. Experts say the resurgent heroin epidemic stems in part from doctors' over-prescription of legal opioid pain killers such as Oxycodone or its time release cousin, OxyContin. When addicts can no longer afford, or find these particularly addictive over-the-counter drugs, they move on to heroin. Drug cartels are taking notice of the demand and in 2014, law enforcement agencies in the U.S. seized triple the amount of heroin confiscated in 2009. SB 966 will allow these drug dealers to escape the additional punishment they deserve." REGISTERED SUPPORT / OPPOSITION: SB 966 Page 9 Support Ella Baker Center for Human Rights (Co-sponsor) Drug Policy Alliance (Co-sponsor) American Civil Liberties Union of California (Co-sponsor) California Attorneys for Criminal Justice American Friends Service Committee California Immigrant Policy Center Friends Committee on legislation California Enlace Prison Policy Initiative Lawyers' Committee for Civil Rights Riverside Temple Beth El Reform California Los Angeles County Public Defender Reentry Success Center Californians United for a Responsible Budget California Public Defenders Association National Association of Social Workers, California Chapter Center on Juvenile and Criminal Justice Project Inform Oakland Rising Needle Exchange Emergency Distribution Alliance for Mena and boys of Color Bend the Arc: A Jewish Partnership for Justice Legal Services for Prisoners with Children California Partnership Bay Area Black Worker Center Community Works Women's Council of the California Chapter of the National SB 966 Page 10 Association of Social Workers Law Enforcement Against Prohibition Islamic Shura Council of southern California Time for Change Foundation Coalition for Humane Immigration Rights for Los Angeles Forward Together HIV Education & Prevention Program of Alameda County Social Justice Learning Institute Santa Cruz County Community Coalition to Overcome Racism California Coalition for Women Prisoners San Francisco Public Defender Asian American Criminal Trial Lawyers Association Starting Over, Inc. Essie Justice Group Silicon Valley De-Bug Rubicon Programs Arts for Incarcerated Youth Network San Diego Organizing Project Swords to Plowshares TGI Justice Project The Sentencing Project Tarzana Treatment Centers, Inc. Unite Here, Local 2850 Young Women's Freedom Center Mayor of the City of Richmond California Prison Moratorium Project John Gioia, Contra Costa County Board of Supervisors Californians for Safety and Justice Harm Reduction Services Time For Change Foundation A New Way of Life Reentry Project Asian Americans Advancing Justice-California Black Women Organized for Political Action California Association for Alcohol and Drug Program Executives, Inc. Contra Costa County Public Defender's Office Center for Health Justice Center for Living and Learning Center for Employment Opportunity SB 966 Page 11 Critical Resistance Los Angeles Communities United for Restorative Justice Health Communities, Inc. Justice Not Jails Los Angeles Community Action Network Centro Legal de la Raza Mortgage Personnel Services Motivating Individual Leadership for Public Advancement (MILPA) Holman United Methodist Church Justice Policy Institute Women's Foundation of California Alameda County Public Defender Underground Scholars Initiative, UC Berkeley Marijuana Lifer Project Filipino Bar Association of California Monterey Bay Central Labor Council, AFL-CIO National Association of Public Defense National Center for Youth Law A New Path California State Conference of the National Association for the Advancement of Colored People HealthRIGHT 360 East Bay Alliance for a Sustainable Economy Courage Campaign Safe Return Project Reentry Solutions Group Western Regional Advocacy Project Asian Pacific Environmental Network S.T.O.P. Hepatitis Task-Force W. Haywood Burns Institute Inland Coalition for Immigrant Justice Bay Area Community Resource Workforce Development Resource Center for Nonviolence Presente.org Prison Law Office Prison Activist Resource Center Orange County Needle Exchange Group National Employment Law Project Poetic Knights I.N.C. SB 966 Page 12 ACCE Action Root & Rebound Four Private Citizens Opposition California District Attorneys Association California Police Chiefs Association California State Sheriffs' Association Office of the San Diego District Attorney Peace Research Association of California 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 Narcotics Officers Association Los Angeles County Professional Peace Officers Association Los Angeles Police Protective League Riverside Sheriffs Association Fraternal Order of Police, California State Lodge California State Law Enforcement Association Sacramento Deputy Sheriffs Association Long Beach Police Officers Association Association of Orange County Deputy Sheriffs Analysis Prepared by:Gregory Pagan / PUB. S. / (916) 319-3744 SB 966 Page 13