BILL ANALYSIS Ó
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).)
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|1 kilogram |3 years |
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|4 kilograms |5 years |
|--------------------------------+--------------------------------|
|10 kilograms |10 years |
|--------------------------------+--------------------------------|
|20 kilograms |15 years |
|--------------------------------+--------------------------------|
|40 kilograms |20 years |
|--------------------------------+--------------------------------|
|80 kilograms |25 years |
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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.
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<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
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<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
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<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
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<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
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<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
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<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?
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<10> Id., at 146 (citations omitted).