BILL ANALYSIS                                                                                                                                                                                                    






                                                                    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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