BILL ANALYSIS Ó SB 1323 Page A 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: SB 1323 Page B 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 SB 1323 Page C 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." SB 1323 Page D 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 SB 1323 Page E (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 SB 1323 Page F 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 SB 1323 Page G 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 SB 1323 Page H 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.) SB 1323 Page I 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. SB 1323 Page J 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). SB 1323 Page K 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). SB 1323 Page L 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 SB 1323 Page M 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). SB 1323 Page N 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 SB 1323 Page O 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 SB 1323 Page P