BILL ANALYSIS                                                                                                                                                                                                    



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

          Bill No:    SB 1323       Hearing Date:     April 5, 2016    
          
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          |Author:    |Bates                                                |
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          |Version:   |February 19, 2016                                    |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|JM                                                   |
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                     Subject:  Controlled Substances:  Fentanyl



          HISTORY

          Source:   Orange County Sheriff's Department

          Prior Legislation:None 

          Support:  California Police Chiefs Association; California State  
                    Sheriffs' Association; Crime Victims United of  
                    California; Orange County Board of Supervisor, Third  
                    District; Orange County District Attorney; San  
                    Bernardino County Sheriff-Coroner; San Diego County  
                    Sheriff's Department

          Opposition:American Civil Liberties Union; California Attorneys  
                    for Criminal Justice; California Public Defenders  
                    Association; Legal Services for Prisoners with  
                    Children

                     
          PURPOSE

          The purpose of this bill is to include the synthetic opioid  
          fentanyl in an enhancement statute under which a defendant  
          convicted of any of a list of specified drug commerce crimes  
          involving heroin, cocaine or cocaine base receives an addition  








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          prison term of from three years to 25 years based on the weight  
          of the substance containing the drug involved in the case.  


          Existing law provides the following penalties for commerce in  
          cocaine, cocaine base, heroin and specified opiates - including  
          fentanyl.   The section references are to the Health and Safety  
          Code.  Sale includes any transfer or distribution:
                  11351 possession for sale  - felony 1170 (h) term of   
               2, 3 or 4 years
                  11351.5 possession of cocaine base for sale - felony    
               1170 (h) term 2, 3,or 4 years
                  11352 sale  - 3, 6 or 9 years

          Existing law provides the following enhancements based on the  
          weight of the heroin, opiate or cocaine possessed for sale or  
          sold.   (Health and Saf. Code  11370.4, subd. (a).)

           ----------------------------------------------------------------- 
          |1   kilogram                    |3   years                       |
          |--------------------------------+--------------------------------|
          |4   kilograms                   |5   years                       |
          |--------------------------------+--------------------------------|
          |10  kilograms                   |10  years                       |
          |--------------------------------+--------------------------------|
          |20  kilograms                   |15  years                       |
          |--------------------------------+--------------------------------|
          |40  kilograms                   |20   years                      |
          |--------------------------------+--------------------------------|
          |80  kilograms                   |25  years                       |
          |                                |                                |
           ----------------------------------------------------------------- 

          This bill adds fentanyl to the list of drugs that include  
          heroin, cocaine or cocaine base for purposes of an enhancement  
          for drug commerce based on the weight of the substance involved  
          in the case that contained one of the listed drugs.  

                    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  









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          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 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  









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               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:

               SB 1323 would add fentanyl to a category of dangerous  
               drugs, such as heroin, that are subject to penalty  
               enhancements based on the weight an individual has in  
               his possession for sale or distribution.  Fentanyl is  
               a synthetic opioid. In its pharmaceutical form,  
               fentanyl is used to treat people with severe chronic  
               pain when other pain medicines no longer work and as  
               an anesthetic in surgery. When abused, both  
               pharmaceutical and clandestine fentanyl affect the  
               brain and nervous system by producing a euphoric high  
               80 to 100 times stronger than morphine and 40 times  
               stronger than heroin.  Overdosing on fentanyl causes  
               blood pressure to plummet, diminishes breathing and  
               induces deep sleep coma, which can lead to death.   
               Between 2013 and 2014, California was one of 25 states  
               affected by fentanyl overdose incidents and deaths.  
               Fentanyl produced clandestinely has no legal medical  
               use and can be smoked, snorted, ingested or injected. 

               Fentanyl can be substituted for heroin in opioid  
               dependent individuals.  However, fentanyl is a very  
               dangerous because it is much more potent and results  
               in frequent overdoses that can lead to respiratory  
               depression and death.  Some analogs are even more  









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               potent.  Particularly troubling is the fact that users  
               are often unaware that they are using fentanyl and,  
               therefore, ignorant to the severe risks they face.   
               Fentanyl is inexpensive to produce, making it a go-to  
               heroin substitute for the drug cartels.  Finally,  
               fentanyl has proven to be a significant threat to law  
               enforcement personnel and first responders as minute  
               amounts -equivalent to a few grains of salt-can be  
               lethal, and visually, can be mistaken for cocaine or  
               white powder heroin. 

               Nationwide there has been a significant increase in  
               fentanyl-related overdose fatalities.  In Ohio there  
               were 514 fentanyl-related fatal overdoses in 2014  
               compared to 92 in 2013.  Maryland also saw a sharp  
               increase with 185 fentanyl-related fatal overdoses in  
               2014 compared to 58 in 2013.  Florida had 397 fatal  
               overdoses attributable to fentanyl in 2014, up from  
               185 in 2013.  While most increases in fentanyl  
               overdose fatalities have been in eastern states, law  
               enforcement officials in California fear that the  
               trend is coming to California.  Orange County has seen  
               an increase in Fentanyl related cases.  For example,  
               Orange County Crime Lab statistics show a 100 percent  
               increase between 2014 (10 cases) and October 2015 (20  
               cases) in driving under the drug's influence cases.   
               There has also been an increase in those found in  
               possession of the drug.  

               SB 1323 amends Section 11370.4 of the Health and  
               Safety Code to include fentanyl with heroin and  
               cocaine in the category of drugs that are subject to  
               enhancements by weight. By doing so, this bill targets  
               those distributing, trafficking, and selling mass  
               quantities of Fentanyl.  SB 1323 recognizes that the  
               danger posed by fentanyl use is greater than that of  
               other opioids, but also threatens the lives and safety  
               of those who do not even use it.  This bill would  
               therefore take the commonsense step of adding the same  
               enhancements for fentanyl, thereby protecting  
               unknowing users, first responders, and children.  

          2.Fentanyl and Fentanyl Analogs History and Background










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          Fentanyl was synthesized in the 1960s and has been used  
          medically since 1968.  The Centers for Disease Control and  
          Prevention (CDC) website<1> provides this description of  
          fentanyl:

               Fentanyl, a synthetic and short-acting opioid  
               analgesic, is 50-100 times more potent than morphine  
               and approved for managing acute or chronic pain  
               associated with advanced cancer.   ?[M]ost cases of  
               fentanyl-related morbidity and mortality have been  
               linked to illicitly manufactured fentanyl and fentanyl  
               analogs, collectively referred to as  
               non-pharmaceutical fentanyl (NPF).  NPF is sold via  
               illicit drug markets for its heroin-like effect and  
               often mixed with heroin and/or cocaine as a  
               combination product-with or without the user's  
               knowledge-to increase its euphoric effects. While  
               NPF-related overdoses can be reversed with naloxone, a  
               higher dose or multiple number of doses per overdose  
               event may be required ?due to the high potency of NPF.  
                (Internal quotation marks and footnotes omitted.)

          Mixing fentanyl or a fentanyl analog with heroin is not a  
          consistent phenomenon and may change over time and from place to  
          place.  A 2015 study<2> by researchers at the Centers for  
          Disease Control and Prevention investigated acetyl fentanyl  
          overdose deaths in Rhode Island over one year's time - March  
          2012 through May 2013, and separately analyzed data from March  
          through May of 2013.  64% of the decedents in the full year data  
          had consumed only acetyl fentanyl, not a mixture of that drug  
          and heroin, although numerous persons had used a mixture of the  
          two drugs.  In the14 acetyl fentanyl overdoses from March  
          through May of 2013, the drug was not likely mixed with heroin. 

          3.DEA Analysis of Current Fentanyl Trends

          The Drug Enforcement Administration (DEA) publishes an annual  
          illicit drug "threat assessment."  The assessment reviews trends  
          and issues concerning major drugs of abuse.  

          ---------------------------
          <1> http://emergency.cdc.gov/han/han00384.asp

          <2> http://link.springer.com/article/10.1007%2Fs13181-015-0477-9









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          The 2105 <3>Threat Assessment stated as to fentanyl:

               Fentanyl will remain a threat while the current  
               clandestine production continues; however, it is  
               unlikely to assume a significant portion of the opioid  
               market. Fentanyl's short-lasting high, coupled with  
               its high mortality rate, renders it unappealing to  
               many opioid users who prefer the longer-lasting high  
               that heroin offers and who wish to avoid the increased  
               danger from fentanyl. Fentanyl will continue to remain  
               available in limited quantities; however, it will most  
               commonly be consumed unknowingly, mixed with heroin or  
               other drugs. Fentanyl will remain a significant threat  
               to law enforcement personnel and first responders as  
               minute amounts? can be lethal, and visually, can be  
               mistaken for cocaine or white powder heroin.  (Italics  
               added.)

          The DEA has reported<4> to the United States Senate that most  
          illicit fentanyl is produced in Mexico "with its analogs and  
          precursors obtained from distributors in China.  Fentanyl is  
          smuggled across the [Southwest U.S. border] in kilogram  
          quantities?"

          4.Many Fentanyl Commerce Crimes are Covered by the Current Drug  
            Weight Enhancements, as Fentanyl is Often Mixed with Heroin, a  
            Drug Included in the Current Enhancement

          The existing enhancement based on the weight of the drug  
          involved in specified drug commerce crimes includes any  
          substance containing cocaine, cocaine base or heroin.  Illicit  
          drug manufacturers, distributors and sellers often mix fentanyl  
          or an analog with heroin, because it is much more potent than  
          heroin and relatively easy and cheap to manufacture.  A  
          defendant convicted of commerce involving a mixture of heroin  
          and fentanyl would be subject to the weight enhancement under  
          current law.  This bill would only be necessary where the sole  
          drug manufactured, distributed or sold in the underlying crime  
          was fentanyl.  However, as noted in Comment #5, prosecutors will  
          likely still need to use the analog statute to implement this  
          ---------------------------

          <3>  http://www.dea.gov/docs/2015%20NDTA%20Report.pdf  - p. 43

          <4> http://www.dea.gov/pr/speeches-testimony/2015t/111715t.pdf








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          bill, as most cases will involve fentanyl analogs, not fentanyl  
          per se.

          5.Most Fentanyl Cases Involve a Fentanyl Analog, typically  
            Acetyl Fentanyl 

          As noted above, most cases that are reported as involving  
          fentanyl actually involve one of numerous fentanyl analogs or  
          derivatives.  Fentanyl and alfafentanyl are Schedule II drugs in  
          California.  As reflected in federal law, but not specifically  
          stated in California law, Schedule I drugs are deemed to have no  
          medical utility and a high potential for abuse. Schedule II  
          drugs have legitimate medical uses, but also a high potential  
          for abuse.  Where a defendant's crime involved acetyl fentanyl  
          or another related drug that is not listed in the controlled  
          substance schedules, it appears the prosecutor must prove that  
          the drug is an analog of fentanyl.  The analog statute applies  
          to Schedule I and Schedule II drugs.  (Health & Saf. Code   
          11054 and 11055.)  

          Health and Safety Code Section 11401 defines an analog as  
          follows:

               (1)  A substance the chemical structure of which is  
               substantially similar to the chemical structure of a  
               controlled substance classified in Section 11054 or  
               11055.

               (2)  A substance which has, is represented as having,  
               or is intended to have a stimulant, depressant, or  
               hallucinogenic effect on the central nervous system  
               that is substantially similar to, or greater than, the  
               stimulant, depressant, or hallucinogenic effect on the  
               central nervous system of a controlled substance  
               classified in Section 11054 or 11055.

          6.Fentanyl Analogs have a Wide Range of Potency and Dangers



          Pharmaceutical fentanyl is much more potent than morphine or  
          heroin.  However, the analgesic, euphoric and overdose  
          properties of pharmaceutical fentanyl are relatively certain and  
          well known, or can be determined.  However, each batch of  









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          non-pharmaceutical fentanyl can have very different chemical  
          composition and effects.  Acetyl fentanyl is actually less  
          potent than pharmaceutical fentanyl, but that is not true for  
          all fentanyl analogs.  There is no consistent ratio of analgesic  
          (pain control), euphoric and overdose properties among fentanyl  
          analogs.  That is, the overdose potential of a drug does not  
          necessarily rise or fall with the euphoric and analgesic  
          properties among the analogs.  The European Monitoring Centre  
          for Drugs and Drug Addiction (EMCDDA) has written that other  
          analogs have been estimated as being thousands of times more  
          potent than morphine.  The EMCDDA<5>cautioned:  "It is difficult  
          to be certain that this increased analgesic potency means that  
          the euphoric effects are similarly increased, and more  
          importantly, whether the overdose potential of these analogues  
          is also increased by the same margin."



          A person who has become accustomed to an analog with  
          comparatively low overdose potential who thereafter uses a drug  
          with a high potential for overdose, is at especially great risk  
          for overdose.  For example, the fentanyl analog  
          3-methylfentanyl, known by the street name of China White,  
          caused many overdose deaths in California in 1978. So-called  
          China White is several hundred times more potent than morphine.   
          Acetyl fentanyl is four to five times more potent than heroin,  
          but substantially less potent than pharmaceutical fentanyl.



          7.  Research on Sentences as a Deterrent 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  


               ----------------------

               ----------------------
          <5>  
          http://www.emcdda.europa.eu/publications/drug-profiles/fentanyl









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               deterrent benefits.<6>

          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  
               drug use and drug prices.<7>

          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  
          -------------------------
          <6>   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.)
          <7>   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 
          ,)








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          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."<8>

          Members may wish to discuss whether the "rationalistic  
          view" of crime described above likely would apply to  
          large-scale fentanyl sellers - that is, whether the  
          sentencing enhancements proposed by this bill would be  
          known by these offenders and, if so, whether the additional  
          time would discourage commission of the crime.

          WOULD SEVERE SENTENCE ENHANCEMENTS DISCOURAGE PERSONS FROM  
          ENGAGING IN FENTANYL COMMERCE AND IMPROVE PUBLIC SAFETY?

          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  
               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  



               ----------------------
          <8>   Id. at 132-133.








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               effect or, even worse, increase crime in the long run  
               if they have the effect of increasing postrelease  
               criminality.

               Evidence is limited on the crime prevention effects of  
               most of the policies that contributed to the post-1973  
               increase in incarceration rates. Nevertheless, the  
               evidence base demonstrates that lengthy prison  
               sentences are ineffective as a crime control measure.  
               Specifically, the incremental deterrent effect of  
               increases in lengthy prison sentences is modest at  
               best. Also, because recidivism rates decline markedly  
               with age and prisoners necessarily age as they serve  
               their prison sentence, lengthy prison sentences are an  
               inefficient approach to preventing crime by  
               incapacitation unless they are specifically targeted  
               at very high-rate or extremely dangerous offenders.   
               For these reasons, statutes mandating lengthy prison  
               sentences cannot be justified on the basis of their  
               effectiveness in preventing crime.<9>

          With regard to the drug trade, the authors state:

               For several categories of offenders, an incapacitation  
               strategy of crime prevention can misfire because most  
               or all of those sent to prison are rapidly replaced in  
               the criminal networks in which they participate.  
               Street-level drug trafficking is the
               paradigm case.  Drug dealing is part of a complex  
               illegal market with low barriers to entry. Net  
               earnings are low, and probabilities of eventual arrest  
               and imprisonment are high . . .  Drug policy research  
               has nonetheless shown consistently that arrested  
               dealers are quickly replaced by new recruits . . . .   
               At the corner of Ninth and Concordia in Milwaukee in  
               the mid-1990s, for example, 94 drug arrests were made  
               within a 3-month period. "These arrests, [the police  
               officer] pointed out, were easy to prosecute to  
               conviction.  But . . . the drug market continued to  
               thrive at the intersection" . . . .  

               Despite the risks of drug dealing and the low average  
               profits, many young disadvantaged people with little  



               ----------------------
          <9>   Id. at 155-156 (emphasis added).








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               social capital and limited life chances ?
               sell drugs on street corners because it appears to  
               present opportunities not
               otherwise available. However, [they] ? overestimate  
               the benefits of
               that activity and underestimate the risks.  This  
               perception is compounded by peer influences, social  
               pressures, and deviant role models provided by  
               successful dealers who live affluent lives and? avoid  
               arrest. Similar analyses apply to members of deviant  
               youth groups and gangs: as members ? are arrested and  
               removed from circulation, others take their place.  
               Arrests and imprisonments of easily replaceable  
               offenders create illicit "opportunities" for  
               others.<10>

          Members may wish to discuss whether the enhancement  
          proposed by this bill would provide any appreciable crime  
          deterrent benefits, and whether greater incapacitation for  
          these offenders could generate the "misfire" consequence  
          described above.

          WOULD THE ADDED COSTS OF INCARCERATION FROM EXPANDING THIS  
          SENTENCING ENHANCEMENT BE OUTWEIGHED BY ITS PUBLIC SAFETY  
          BENEFIT, EITHER THROUGH INCAPACITATION OR DETERRENCE?


                                      -- END -





          












          ---------------------------
          <10>   Id., at 146 (citations omitted).