BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
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AB 640 (Huber)
As Amended April 21, 2009
Hearing date: June 16, 2009
Penal Code
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MANDATORY 120-DAY JAIL TERM AS CONDITION OF PROBATION:
SALE OF METHAMPHETAMINE
HISTORY
Source: Author
Prior Legislation: AB 441 (Parra) - 2007, held in Senate Public
Safety
Support: California District Attorneys Association; California
Peace Officers' Association; California Police Chiefs
Association; California State Sheriffs' Association;
Peace Officers Research Association of California; Los
Angeles County District Attorney; San Joaquin County
Sheriff; San Joaquin County District Attorney; Amador
County Sheriff
Opposition:California Attorneys for Criminal Justice; Legal
Services for Prisoners with Children; Taxpayers for
Improving Public Safety; Drug Policy Alliance Network
Assembly Floor Vote: Ayes 77 - Noes 1
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KEY ISSUE
SHOULD ANY PERSON WHO IS GRANTED PROBATION FOLLOWING CONVICTION FOR
THE SALE OF METHAMPHETAMINE BE SUBJECT TO A MINIMUM 120 DAY JAIL
TERM AS A CONDITION OF PROBATION, UNLESS THE COURT SPECIFICALLY
FINDS AND STATES ON THE RECORD THAT IT IS IN THE INTEREST OF JUSTICE
NOT TO IMPOSE SUCH A TERM?
PURPOSE
The purpose of this bill is to require the court, in granting
probation to any person convicted of the sale of
methamphetamine, to order the defendant to serve a minimum term
of 120 days in the county jail as a condition of probation
unless the court finds that it is in the interest of justice not
to impose such a term.
Existing law classifies controlled substances in five
schedules, generally according to their danger and potential
for abuse. (Health & Saf. Code 11054-11058.)
Existing law provides penalties for sale, possession for sale or
distribution, sale or distribution, and manufacturing of
controlled substances. (Health & Saf. Code 11350-11401.)
Existing law , with numerous exceptions, includes the following
penalties:
Heroin, cocaine and other specified drugs (section references
are to the Health and Safety Code):
11350 possession straight felony
- prison term of 16 months, 2 years or 3 years<1>
11351 possession for sale or distribution -
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<1> Hereinafter, a description of a crime as a "felony,"
without an additional explanation or description of the
applicable prison sentence, means that the crime is punishable
by imprisonment for 16 months, 2 years or 3 years.
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prison for 2, 3 or 4 years
11351.5 possession of cocaine base
(crack) for sale - prison for 3, 4, 5 years
11352 sale or distribution - 3,
6 or 9 years
Marijuana:
11357 possession - misdemeanor
11358 cultivation or processing
- felony
11359 possession for sale -
felony
11360 sale or distribution -
felony, 2, 3 or 4 years
Methamphetamine and other specified drugs:
11377 possession - alternate
felony-misdemeanor
11378 possession for sale or
distribution - felony
11379 sale or distribution -
felony, 2, 3 or 4 years
Existing law includes numerous enhancement provisions for
controlled substance crimes. These include enhancements based
on the weight and volume of controlled substances and sale
within a certain distance from a school. Examples of
enhancements include the following: enhancement for weight of
controlled substances involved in sale or distribution (Health &
Safety Code 11370.4, subdivision (b)); enhancement for weight
or volume of controlled substance involved in manufacturing
(Health & Saf. Code 11379.8); and enhancement where person
dies or suffers great bodily injury in the manufacturing of
methamphetamine.
Existing law provides that any person who manufactures,
compounds, converts, produces, derives, processes, or prepares
either directly or indirectly by chemical extraction or
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independently by means of chemical synthesis any controlled
substance is guilty of a felony, punishable by imprisonment in
the state prison for three, five or seven years and by a fine of
up to $50,000. (Health & Saf. Code 11379.6.)
Existing law provides that any person who possesses specified
chemicals with the intent to manufacture a controlled substance
is guilty of a felony punished by imprisonment in the state
prison for two, four or six years. (Health & Saf. Code
11383.)
Existing law includes enhancements for controlled substance
crimes that occur in specified places. For example, the
enhancement triad for involving a minor in specified controlled
substance crimes is three, six or nine years. (Health & Saf.
Code 11353.) There are myriad other special penalty
provisions.
Existing law provides that any person convicted of selling, or
possessing for sale, more than 28.5 grams of cocaine, or 57
grams of a substance containing cocaine, may be granted
probation only in unusual circumstances. The court must state
on the record the reasons for granting probation in such a case.
Disqualifying amounts of cocaine base are smaller (14.5 grams
of cocaine base or 57 grams of a substance containing at least 5
grams of cocaine base). (Pen. Code 1203.073, subd. (b)(2) and
(b)(5).)
Existing law provides that any person convicted of possessing
for sale, sale, or offering for sale at least 14.25 grams of
heroin cannot be granted probation. (Pen. Code 1203.07.)
Existing law provides that any person convicted of possessing
for sale, sale, or offering for sale any amount of heroin cannot
be granted probation if he or she has a prior conviction for one
of these offenses. (Pen. Code 1203.07.)
Existing law provides that any person convicted of selling, or
possessing for sale, more than 28.5 grams of methamphetamine, or
57 grams of a substance containing methamphetamine, may be
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granted probation only in unusual circumstances. The court must
state on the record the reasons for granting probation in such a
case. (Pen. Code 1203.073, subd. (b)(2).)
Existing law provides that any person convicted of the sale of
cocaine, heroin, or PCP who is eligible for probation, and is
granted probation shall, as a condition thereof, be confined in
a county jail for at least 180 days. The imposition
of the minimum 180-day sentence shall be imposed in every case
where probation has been granted, except that the court may, in
an unusual case where the interest of justice would
best be served, absolve a person from spending the 180-day
sentence in the county jail if the court specifies on the record
and enters into the minutes, the circumstances indicating that
the interests of justice would best be served by that
disposition. (Pen. Code 1203.076.)
This bill provides that any person convicted of the sale of
methamphetamine, and who is eligible for probation and is
granted probation shall, as a condition thereof, be confined in
a county jail for at least 120 days.
This bill provides that the court can decline to impose the
120-day jail term if the court specifies on the record and
enters into the minutes the circumstances indicating that the
interest of justice would best be served by that disposition.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
currently has about 170,000 inmates under its jurisdiction. Due
to a lack of traditional housing space available, the department
houses roughly 15,000 inmates in gyms and dayrooms.
California's prison population has increased by 125% (an average
of 4% annually) over the past 20 years, growing from 76,000
inmates to 171,000 inmates, far outpacing the state's population
growth rate for the age cohort with the highest risk of
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incarceration.<2>
In December of 2006 plaintiffs in two federal lawsuits against
CDCR sought a court-ordered limit on the prison population
pursuant to the federal Prison Litigation Reform Act. On
February 9, 2009, the three-judge federal court panel issued a
tentative ruling that included the following conclusions with
respect to overcrowding:
No party contests that California's prisons are
overcrowded, however measured, and whether considered
in comparison to prisons in other states or jails
within this state. There are simply too many
prisoners for the existing capacity. The Governor,
the principal defendant, declared a state of emergency
in 2006 because of the "severe overcrowding" in
California's prisons, which has caused "substantial
risk to the health and safety of the men and women who
work inside these prisons and the inmates housed in
them." . . . A state appellate court upheld the
Governor's proclamation, holding that the evidence
supported the existence of conditions of "extreme
peril to the safety of persons and property."
(citation omitted) The Governor's declaration of the
state of emergency remains in effect to this day.
. . . the evidence is compelling that there is no
relief other than a prisoner release order that will
remedy the unconstitutional prison conditions.
. . .
Although the evidence may be less than perfectly
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<2> "Between 1987 and 2007, California's population of ages 15
through 44 - the age cohort with the highest risk for
incarceration - grew by an average of less than 1% annually,
which is a pace much slower than the growth in prison
admissions." (2009-2010 Budget Analysis Series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
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clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate population must be reduced to at most 120% to
145% of design capacity, with some institutions or
clinical programs at or below 100%. We caution the
parties, however, that these are not firm figures and
that the Court reserves the right - until its final
ruling - to determine that a higher or lower figure is
appropriate in general or in particular types of
facilities.
. . .
Under the PLRA, any prisoner release order that we
issue will be narrowly drawn, extend no further than
necessary to correct the violation of constitutional
rights, and be the least intrusive means necessary to
correct the violation of those rights. For this
reason, it is our present intention to adopt an order
requiring the State to develop a plan to reduce the
prison population to 120% or 145% of the prison's
design capacity (or somewhere in between) within a
period of two or three years.<3>
The final outcome of the panel's tentative decision, as well as
any appeal that may be in response to the panel's final
decision, is unknown at the time of this writing.
This bill does not appear to aggravate the prison overcrowding
crisis outlined above.
COMMENTS
1. Need for This Bill
---------------------------
<3> Three Judge Court Tentative Ruling, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (Feb. 9, 2009).
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According to the author:
We must put to an end the ability of drug dealers to
return directly back to our streets after being
convicted of selling methamphetamine. The longer we
put drug pushers behind bars, the longer drug addicts
and drug infested communities will have to cleanup and
break the cycle of drug abuse.
Despite continuous efforts to combat the
methamphetamine drug use epidemic, its use in
California is rampant throughout the state. The
Department of Alcohol and Drug Programs (ADP) has
reported that methamphetamine use is now the most
commonly reported primary drug problem in the state,
based on data collected from all publicly monitored
treatment providers. Nationwide, Californians make up
40% of all methamphetamine treatment admissions.
2. Minimum Jail Term as a Condition of Probation for Defendants
Convicted of Sale of Heroin, Cocaine or PCP
Penal Code Section 1203.076 provides that any person convicted
of the sale of cocaine, heroin, or PCP who is eligible for and
granted probation shall serve at least 120 days in the county
jail, except in unusual circumstances. Existing law does not
have a similar provision relating to the sale of
methamphetamine. Therefore, a person convicted of the sale of
methamphetamine could be granted probation and not serve one day
in jail. This bill requires that persons convicted of the sale
of methamphetamine serve at least 120 days in the county jail.
DEFENDANTS WHO ARE PLACED ON PROBATION FOLLOWING CONVICTION FOR
FELONY DRUG SALES TYPICALLY SERVE A TERM IN THE COUNTY JAIL AS A
CONDITION OF PROBATION.
SHOULD THE MINIMUM JAIL TERM FOR PROBATIONERS CONVICTED OF
METHAMPHETAMINE BE 120 DAYS -- THE SAME AS THE MINIMUM JAIL TERM
FOR PROBATIONERS CONVICTED OF SALE OF HEROIN OR COCAINE?
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3. Concerns that Methamphetamine Commerce is Driven by Demand,
not Supply
If new methamphetamine dealers will simply replace dealers who
are incarcerated under this bill and existing law, little
progress will be made in reducing methamphetamine abuse.
Researchers such as Alfred Blumstein at Carnegie Mellon
University have noted that the crack cocaine epidemic of the
1980s thrived in the face of aggressive law enforcement
suppression efforts. Further, violent struggles for control of
the crack trade were likely exacerbated by incarceration of
established dealers, as young and violent offenders fought over
the market share of the incarcerated dealer.
It has been argued that the only lasting solution to the serious
and relatively wide-spread problems of methamphetamine abuse is
to lessen demand for the drug through treatment programs. While
funding for treatment programs is very limited in these
difficult economic conditions, it is also costly to incarcerate
methamphetamine offenders.
A 2001 RAND report by Peter Reuter stated that many low-level
drug dealers are also addicts and drug abusers. Incarcerating
such dealers could, Reuter concluded, reduce demand. (Reuter,
The Limits of Supply-Side Drug Control, (2001) RAND and Milken
Institute Review.) However, without treatment, any benefit to
the community would last only as long as the incarceration of
the offender. More troubling, Reuter noted that the reduction
in demand by addicts and long-term users could lead to lower
cost of drugs. Lower cost and steady availability of drugs
could then increase the number of new users. Reuter concluded
that cocaine and heroin use did not increase in the mid-1990s
because use of cocaine and heroin simply became unfashionable
for many young people who had seen "miserable looking addicts"
in the community. Similar rejection of methamphetamine appears
not to have occurred.
The availability of methamphetamine in California and other
states appears to be down, perhaps largely because of
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interdiction efforts against Mexican cartels, reduced
availability of precursor chemicals in Mexico and violent
competition among the cartels. Nevertheless, the DEA's current
methamphetamine threat assessment concludes that Mexican cartels
are likely moving methamphetamine production to Central and
South America. The DEA noted that the cartels would have little
difficulty obtaining pseudoephedrine in Central and South
America. (2009 National Drug Threat Assessment, DEA, pp.
13-16.) Steady demand for methamphetamine in California could
lead to increasing supply in the relatively near future.
SHOULD THE STATE CONCENTRATE METHAMPHETAMINE CONTROL EFFORTS ON
REDUCING DEMAND FOR THE DRUG?
DOES STEADY DEMAND FOR METHAMPHETAMINE MAKE IT LIKELY THAT NEW
SELLERS WILL MEET THE DEMAND WHEN OTHERS ARE INCARCERATED?
4. Possible Deterrent Effect of This Bill
It has been argued that increased penalties will deter crime.
This bill requires a minimum jail term of 120 days for any
person granted probation for sale of methamphetamine. The
deterrent value of the bill is basically dependent on 1)
potential perpetrators knowing about the minimum jail term
required by this bill, and 2) those persons deciding not to
engage in methamphetamine commerce because of the minimum
sanctions.
Arguably, one can only speculate whether or not potential
perpetrators would learn of the minimum jail term that would be
imposed under this bill. Further, arguably one can only
speculate whether such knowledge would induce the person to
avoid methamphetamine commerce. Nevertheless, criminologists
are generally skeptical of the value of special deterrence - the
effect of a specific law in deterring potential criminals from
violating that law. Criminologists generally accept the concept
of general deterrence - the deterrent effect that the criminal
law has on the average citizen's temptation to do wrong.
The Three Strikes law is arguably the most well-known special
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criminal sentencing law in California. The law has been
discussed widely in the media. Most researchers who have
published peer-reviewed studies using accepted statistical
analysis have concluded that the Three Strikes law has had very
little effect on crime rates in California. Conclusions that
Three Strikes has had a significant effect on reducing crime
have been criticized as relying on a coincidental, not causal,
continuation of falling crime rates that began before the law
was enacted.
This bill, unlike the Three Strikes law, would likely receive
relatively little publicity or notice. Arguably, most potential
methamphetamine sellers do not have substantial knowledge about
the details of probation eligibility laws in the state.
Further, even where a potential methamphetamine seller was aware
of the minimum jail term required by this bill, he or she may
well conclude that the chance of being apprehended is small and
that the possible service of a 120 day jail term is worth the
risk.
WOULD THE 120 MINIMUM JAIL TERM REQUIRED BY THIS BILL AS A
CONDITION OF PROBATION FOR A PERSON CONVICTED OF METHAMPHETAMINE
COMMERCE DETER PERSONS FROM COMMITTING SUCH A CRIME?
DOES THE AUTHORITY OF A COURT TO GRANT PROBATION UNDER UNUSUAL
CIRCUMSTANCES IN THE INTEREST OF JUSTICE GIVE COURTS ADEQUATE
DISCRETION IN CASES INVOLVING METHAMPHETAMINE SALES?
5. Recent Methamphetamine Related Legislation
On April 28, 2009, this Committee passed SB 484 (Wright), which
would require a prescription for the purchase of pseudoehpedrine
- a chemical that can be used to make methamphetamine. The
purpose of SB 484 is to limit diversion of pseudoephedrine for
use in illicit methamphetamine laboratories.
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6. Argument in Support
The California State Sheriffs' Association argues in support:
Existing law provides that any person who is eligible
for and granted probation, be confined in the county
jail for at least 180 days. AB 640 would add the sale
of methamphetamine to the provision requiring 180 days
in the county jail as a condition of probation.
Methamphetamine use and distribution has devastating
social and public safety consequences. It is
imperative that equal penalties be applied for the
distribution of this product in addition to that of
cocaine and heroin as included in current statute.
7. Argument in Opposition
The California Attorneys for Criminal Justice argues in
opposition:
First, we would note that it is important to allow
judges to have broad discretion under the law to
determine an appropriate sentence in any given case,
as they can factor such things as the nature of the
offense and the background and character of each
individual defendant. To create a presumptive minimum
jail term as set forth in AB 640 will only serve to
needlessly fetter such judicial discretion and to
further erode the trust we bestow on our independent
judiciary.
Second, we would also note that the California prison
and local jail systems are currently in a crisis mode
regarding overcrowding. The California prison system
is facing federal intervention and a reduction in its
budget given California's fiscal crisis. The prison
population is more than double our prison capacity.
Jail populations are only growing and taxing local
county governments. Given this reality and the urgent
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need to remedy this major crisis in California's
criminal justice system, we believe it is particularly
inappropriate to pass legislation which would
unnecessarily add to California's already overcrowded
and over-burdened prison and county jail systems.
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