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 29, 2010
Penal Code
JM:dl VOTE ONLY
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
The severe prison overcrowding problem California has
experienced for the last several years has not been solved. In
December of 2006 plaintiffs in two federal lawsuits against the
Department of Corrections and Rehabilitation sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
federal three-judge panel issued an order requiring the state to
reduce its inmate population to 137.5 percent of design capacity
-- a reduction of roughly 40,000 inmates -- within two years.
In a prior, related 184-page Opinion and Order dated August 4,
2009, that court stated in part:
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"California's correctional system is in a tailspin,"
the state's independent oversight agency has reported.
. . . (Jan. 2007 Little Hoover Commission Report,
"Solving California's Corrections Crisis: Time Is
Running Out"). Tough-on-crime politics have increased
the population of California's prisons dramatically
while making necessary reforms impossible. . . . As a
result, the state's prisons have become places "of
extreme peril to the safety of persons" they house, .
. . (Governor Schwarzenegger's Oct. 4, 2006 Prison
Overcrowding State of Emergency Declaration), while
contributing little to the safety of California's
residents, . . . . California "spends more on
corrections than most countries in the world," but the
state "reaps fewer public safety benefits." . . . .
Although California's existing prison system serves
neither the public nor the inmates well, the state has
for years been unable or unwilling to implement the
reforms necessary to reverse its continuing
deterioration. (Some citations omitted.)
. . .
The massive 750% increase in the California prison
population since the mid-1970s is the result of
political decisions made over three decades, including
the shift to inflexible determinate sentencing and the
passage of harsh mandatory minimum and three-strikes
laws, as well as the state's counterproductive parole
system. Unfortunately, as California's prison
population has grown, California's political
decision-makers have failed to provide the resources
and facilities required to meet the additional need
for space and for other necessities of prison
existence. Likewise, although state-appointed experts
have repeatedly provided numerous methods by which the
state could safely reduce its prison population, their
recommendations have been ignored, underfunded, or
postponed indefinitely. The convergence of
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tough-on-crime policies and an unwillingness to expend
the necessary funds to support the population growth
has brought California's prisons to the breaking
point. The
state of emergency declared by Governor Schwarzenegger
almost three years ago continues to this day,
California's prisons remain severely overcrowded, and
inmates in the California prison system continue to
languish without constitutionally adequate medical and
mental health care.<2>
The court stayed implementation of its January 12, 2010 ruling
pending the state's appeal of the decision to the U.S. Supreme
Court. On Monday, June 14, 2010, The U.S. Supreme Court agreed
to hear the state's appeal in this case.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
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.
----------------------
<2> Three Judge Court Opinion and Order, 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 (August 4, 2009).
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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?
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
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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 fierce
interdiction efforts against Mexican cartels, particularly by
the Mexican army, 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
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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
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.
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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?
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5. 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.
6. 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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