BILL ANALYSIS Ó SB 1182 Page 1 Date of Hearing: June 29, 2016 ASSEMBLY COMMITTEE ON APPROPRIATIONS Lorena Gonzalez, Chair SB 1182 (Galgiani) - As Introduced February 18, 2016 ----------------------------------------------------------------- |Policy |Public Safety |Vote:|7 - 0 | |Committee: | | | | | | | | | | | | | | ----------------------------------------------------------------- Urgency: No State Mandated Local Program: YesReimbursable: No SUMMARY: This bill makes the possession of specified controlled substances (gamma hydroxybutyric acid (GHB), ketamine or flunitrazepam, also known as Rohypnol), with the intent to commit sexual assault, as defined, a felony punishable in the state prison for 16 months or two or three years. FISCAL EFFECT: Potentially moderate ongoing out-year costs in excess of SB 1182 Page 2 $150,000 (GF) for increased state prison commitments. According to the California Department of Corrections (CDCR), the contracted out-of-state annual bed rate is $29,000. In 2013-14, there were 22 state prison commitments for rape convictions where the victim was prevented from resisting by an intoxicating substance, and an unknown number were prevented. If intent to commit sexual assault, with any of the three substances listed were proven for three individuals per year, the cost to CDCR would be $87,000 (GF) the first year, $174,000 (GF) the second year, etc. for this new crime. COMMENTS: 1)Purpose. According to the author, "In November 2014, California voters approved Proposition 47 which reclassified many crimes from felonies to misdemeanors. One of these reclassifications involved the possession of the drugs Rohypnol, GHB and ketamine-commonly known as 'date rape' drugs. Senate Bill 1182 would give prosecutors the ability to bring felony charges against individuals caught in possession of date rape drugs with the intent to commit a sexual assault. 2)Background. On November 4, 2014, California voters approved Proposition 47, also known as the Safe Neighborhoods and Schools Act, which reduced penalties 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. Current 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 SB 1182 Page 3 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 is a felony. Also under current law, 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. Current law also 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. "Club Drugs." Ketamine, GHB, and flunitrazepam are commonly designated as "club drugs" due to their association with raves, nightclubs, concerts, and parties. Other drugs included in this designation are MDMA (ecstasy), methamphetamine, and cocaine. Club drugs became popular in the 1990s and tend to be used by youth and young adults to heighten mood, increase extraversion and physical energy, and intensify the senses. 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 their intoxicating effects. 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. SB 1182 Page 4 3)Governor's Veto Message: This bill is identical to SB 333 (Galgiani), of the current legislative session, which was vetoed by the Governor. This bill was among several other criminal justice bills vetoed by the Governor last year signaling the Governor's push for sentencing reform. According to the Governor's veto message: "Each of these bills creates a new crime - usually by finding a novel way to characterize and criminalize conduct that is already proscribed. This multiplication and particularization of criminal behavior creates increasing complexity without commensurate benefit. "Over the last several decades, California's criminal code has grown to more than 5,000 separate provisions, covering almost every conceivable form of human misbehavior. During the same period, our jail and prison populations have exploded. "Before we keep going down this road, I think we should pause and reflect on how our system of criminal justice could be made more human, more just and more cost-effective." 4)Support. According to the California Police Chiefs Association, ""SB 1182 will help keep our communities and college campuses safer by providing law enforcement with the necessary tools to successfully combat the possession and use of predatory drugs." 5)Opposition. According to California Attorneys for Criminal Justice, "Longer and harsher prison sentences for possession of drugs runs counter to the express preference of California voters for a shift in priorities toward violent crime and away from punishing drug offenders with longer and longer sentences. Moreover, the circumstance SB 1182 seeks to criminalize, the possession of "date rape" drugs by sexual predators who intend to use them to commit sexual assault, is SB 1182 Page 5 already criminalized, effectively and severely, by attempt and sexual assault laws." "If a prosecutor can credibly allege that a defendant has the intent to commit a sexual assault, then the prosecutor can combine that intent with the possession of the drugs specified by this bill (an act in furtherance) and charge the defendant with attempted sexual assault. Such a charge would be a felony and carry at least as strong a sentence as the new crime contemplated by this bill. 6)Prior Legislation: a) AB 46 (Lackey), held on this committee's Suspense file, is nearly identical to this bill. b) SB 649 (Leno), of the 2013-2014 Legislative Session, would have made the simple possession for personal use of cocaine, cocaine base, heroin, opium, and other specified narcotics, opiates and hallucinogens listed in the controlled substance schedule an alternate felony/misdemeanor, rather than a straight felony. SB 649 was vetoed. In his message, the Governor cited the realignment legislation as the proper vehicle to examine the current sentencing structure. c) SB 1506 (Leno), of the 2011-2012 Legislative Session, would have made the unlawful possession of specified controlled substances a misdemeanor. SB 1506 failed passage on the Senate floor. d) SB 1067 (Horton), of the 2003-2004 Legislative session, would have excluded the drugs GHB, rohypnol, and ketamine from coverage by the term "nonviolent drug possession offense" thereby making possession of these drugs ineligible for probation and drug treatment under Proposition 36, approved by the voters on November 7, 2000. SB 1067 failed passage in Assembly Public Safety. SB 1182 Page 6 Analysis Prepared by:Pedro R. Reyes / APPR. / (916) 319-2081