BILL ANALYSIS Ó
SB 1323
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Date of Hearing: June 21, 2016
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
SB
1323 (Bates) - As Introduced February 19, 2016
SUMMARY: Includes 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 additional prison term of
three to 25 years based on the weight of the substance
containing the drug involved in the case.
EXISTING LAW:
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1)Provides the following penalties for commerce in cocaine,
cocaine base, heroin and specified opiates including fentanyl.
Sale includes any transfer or distribution:
a) Possession for sale is punishable by two, three, or four
years. (Health and Saf. Code § 11351.)
b) Sale of fentanyl is punishable by three, four, or five
years. If transportation over county lines is involved the
offense is punishable by 3, 6, or 9 years. (Health and
Saf. Code § 11352.)
2)Provides the following additional sentencing enhancements
based on the weight of the heroin, opiate or cocaine possessed
for sale or sold. (Health and Saf. Code §§ 11370.4, subd.
(a).)
a) 1 kilogram = 3 years
b) 4 kilograms = 5 years
c) 10 kilograms = 10 years
d) 20 kilograms = 15 years
e) 40 kilograms = 20 years
f) 80 kilograms = 25 years
FISCAL EFFECT:
COMMENTS:
1)Author's Statement: According to the author, "SB 1323
recognizes that the danger posed by fentanyl is greater than
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that of other drugs with penalty enhancements based on weight.
Fentanyl is not only fifty-times stronger than heroin, 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.
"Just this year, we have witnessed the severe impact fentanyl
is having on our communities. In March, the Sacramento area
saw 52 fentanyl overdoses and 14 deaths in the period of just
a week. Data from Orange and Los Angeles counties reveals a
more than 40% increase, year-over-year, in fentanyl-related
deaths. In early June, we learned that beloved musical icon
Prince was the latest of thousands of Americans whose lives
have been taken by fentanyl. Without swift action, law
enforcement officials expect these trends to continue.
"As demonstrated during the last fentanyl outbreak, a decade
ago, the best way to address this serious problem is to
suffocate the illegal fentanyl trade at its source. This bill
represents a critical step toward preventing fentanyl from
causing even more fatalities and damage to our state. By going
after the sophisticated criminal organizations that produce,
transport, and distribute fentanyl, we give law enforcement
the tools it needs to end this deadly scourge.
"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. The bill does not affect those
who use fentanyl - whether legally or illegally. It only
targets the high-level, illegal traffickers who are causing
the proliferation of fentanyl, leading to hundreds of deaths
throughout the state."
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2)Jail Overcrowding: According to a recent report by the Public
Policy Institute of California titled Capacity Challenges in
California's Jails, California's county jails are facing
increasing adult daily populations (ADP). Many counties are
facing capacity constraints on their population. Prior to
realignment, 17 counties were operating under court orders
limiting the number of inmates in their jails. In all, 13
counties including some of the biggest (Los Angeles, Orange,
San Diego, and Sacramento) had average daily populations that
were larger than the number of beds their jails were rated
for.
3)Fentanyl and Fentanyl Analogs: 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.
----------------------
<1>
http://emergency.cdc.gov/han/han00384.asp
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(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.
4)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.
The 2015 <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
----------------------
<2> http://link.springer.com/article/10.1007%2Fs13181-015-0477-9
<3> http://www.dea.gov/docs/2015%20NDTA%20Report.pdf - p. 43
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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?"
5)Existing Law Covers Many Fentanyl Commerce Crimes 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,
prosecutors will likely still need to use the analog statute
to implement this bill, as most cases will involve fentanyl
analogs, not fentanyl per se.
6)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
---------------------------
<4> http://www.dea.gov/pr/speeches-testimony/2015t/111715t.pdf
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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:
a) A substance the chemical structure of which is
substantially similar to the chemical structure of a
controlled substance classified in Section 11054 or 11055.
b) 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.
7)Increasing Sentences for Narcotic Fentanyl: 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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deterrent benefits.<5>
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
----------------------
<5> 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.<6>
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."<7>
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:
------------------------
<6> 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
,)
<7> Id. at 132-133.
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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
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.<8>
----------------------
<8> Id. at 155-156 (emphasis added).
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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
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.<9>
----------------------
<9> Id., at 146 (citations omitted).
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8)Argument in Support: According to the California Police
Chiefs Association, "SB 1323 would 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 and selling mass quantities of fentanyl.
"SB 1323 provides an appropriate public policy solution to
addressing the danger posed by this illicit drug. By focusing
on those who seek to illegally sell the substance, law
enforcement can reduce the drug's prevalence in our
communities. For those reasons, Cal Chiefs is in support of
this measure."
9)Argument in Opposition: According to the American Civil
Liberties Union, "The American Civil Liberties Union of
California regrets to inform you of our opposition to SB 1323,
a bill that would create sentence enhancements ranging from 3
to 25 years for, among other things, possessing for sale a
substance containing fentanyl. In light of existing
penalties, existing jail overcrowding, and the growing
consensus that the war on drugs has been a massive failure, we
do not believe this bill is necessary and may instead be
counterproductive.
"Under existing law, a person who possesses fentanyl for sale
or purchases it for sale can be punished by up to four years
in jail. (Health and Safety Code §11351.) Likewise, a person
can be punished by up to five years in jail for transporting,
selling, or giving away fentanyl. (Health and Safety Code
§11352.) Adding excessive new sentence enhancements for
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these crimes will not make our communities safer.<10> Rather,
studies have found that certainty of punishment - that someone
will be punished for a particular crime - has a greater
deterrent effect than the severity of the punishment
itself.<11> Current law already provides significant
penalties for the underlying behavior at issue in this bill.
"Rather than acting as a deterrent, the new enhancements will
only serve to overcrowd our jails. By recent accounts,
California jails already face problems with overcrowding, with
38 facilities across 20 counties under court-ordered population
caps.<12> Unnecessarily crowding our jails and prisons is not
fiscally prudent, nor safe for inmates, jail staff, or the
public.
"Moreover, there is growing national consensus that the war on
drugs, characterized by draconian sentences like the ones at
issue in SB 1323, has been a harmful, expensive failure. Just
recently, even a former Richard Nixon advisor, one of the
original architects of the war, admitted as much, confessing,
'Did we know we were lying about the drugs? Of course we
did.'<13>"
REGISTERED SUPPORT / OPPOSITION:
---------------------------
<10> Valerie Wright, Deterrence in Criminal Justice: Evaluating
Certainty vs. Severity of Punishment (Sentencing Project 2010)
available at
http://www.sentencingproject.org/doc/deterrence%20briefing%20.pdf
.
<11> Id.
<12> Magnus Lofstrum and Brandon Martin, Just the Facts:
California's County Jails, (Public Policy Institute of
California 2015).
<13> Dan Baum, Legalize it All: How to Win the War on Drugs,
Harpers Magazine (April 2016).
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Support
Association for Los Angeles Deputy Sheriffs
Association of Deputy District Attorneys
California College and University Police Chiefs Association
California Narcotic Officers Association
California Police Chiefs Association
California State Sheriffs' Association
City of Laguna Niguel
Crime Victims United of California
Los Angeles District Attorney's Office
Los Angeles Police Protective League
Orange County Board of Supervisors
Orange County District Attorney
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Orange County Sheriff
Riverside Sheriffs Association
San Bernardino County Sheriff
San Diego Sheriff
Todd Spitzer, Orange County Supervisor
Opposition
American Civil Liberties Union
California Attorneys for Criminal Justice
California Public Defenders Association
Legal Services for Prisoners with Children
Analysis Prepared by:Gabriel Caswell / PUB. S. / (916)
319-3744
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