BILL ANALYSIS
AB 858
Page 1
Date of Hearing: April 14, 2009
Chief Counsel: Gregory Pagan
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Jose Solorio, Chair
AB 858 (Gilmore) - As Introduced: February 26, 2009
SUMMARY : Increases the term of imprisonment for any person
convicted of selling methamphetamine, or possessing
methamphetamine for the purpose of sale. Specifically, this
bill :
1)Increases the penalty for any person convicted of possession
for the purpose of sale of methamphetamine from 16 months, 2
or 3 years in the state prison to two, three or four years in
the state prison.
2)Increases the penalty for any person convicted of
transporting, selling, furnishing, or giving away
methamphetamine from two, three, or four years in the state
prison to three, four, or five years in the state prison.
3)Requires any person convicted of the sale of methamphetamine
and granted probation to serve a minimum of 120 days in a
county jail unless the court finds it is not in the interest
of justice to impose that sentence.
EXISTING LAW :
1)Provides that the possession of specified controlled
substances shall be punished by imprisonment in a county jail
for a term not to exceed one year or by imprisonment in the
state prison for 16months, 2 or 3 years. [Health and Safety
Code (HSC) Section 11377(a).]
2)Provides that a person who possesses for sale specified
controlled substances shall be punished by imprisonment in the
state prison for 16 months, 2 or 3 years in the state prison.
(HSC Section 11378.)
3)Provides that any person who transports, sells, furnishes, or
gives away specified controlled substances shall be punished
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by imprisonment state prison for two, three, or four years in
the state prison. [HSC Section 11379 (a).]
4)Classifies controlled substances in five schedules according
to their danger and potential for abuse. Schedule I
controlled substances have the greatest restrictions and
penalties, including prohibiting the prescribing of a Schedule
I controlled substance. (HSC Sections 11054 to 11058.)
5)Provides that that any person who transports for sale
specified controlled substances in this state from one county
to a noncontiguous county is punishable by imprisonment in the
state prison for three, six, or nine years in the state
prison. [HSC Section 11379(b).]
6)Provides that any person who manufactures, compounds,
converts, produces, derives, processes, or prepares either
directly or indirectly by chemical extraction or 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. (HSC 11379.6.)
7)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. (HSC Section 11383.)
8)Provides that any person 18 years of age or older convicted of
selling cocaine, heroin, or cocaine base to a minor on the
grounds of, or within, a church, synagogue, playground, youth
center, child day-care facility, or a public swimming pool
shall be punished by an additional one year in the state
prison. (HSC Section 11353.1.)
9)Provides that any person 18 years of age or older convicted of
the sale, or possession for sale, of cocaine base, heroin, or
methamphetamine, upon the grounds, or within 1,000 feet, of a
public or private elementary school, vocational, junior high,
or high school during hours that the school is open for
classes or school-related programs is punishable by an
additional three, four, or five years in the state prison.
(HSC Section 11353.6.)
FISCAL EFFECT : Unknown
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COMMENTS :
1)Author's Statement : According to the author, "The Central
Valley has been plagued by the disastrous effects of this
dangerous drug despite continued efforts to reduce and
eliminate the resulting devastation created by the
methamphetamine epidemic. As a consequence law abiding
citizens continue to suffer. There is not enough being done
to protect our families and communities from criminals
addicted. Equalizing the penalties for the sale and
transportation of this drug to the penalties for the equally
heinous and destructive substances such as cocaine and heroin
will underscore the gravity of these crimes."
2)Are Existing Penalties Inadequate ? Under existing law, the
possession for sale of methamphetamine is punishable by 16
months, 2 or 3 years in the state prison. (HSC Section
11378.) The sale or transportation of methamphetamine is
punishable by two, three, or four years in the state prison.
(HSC Section 11379.) This bill increases the punishment for
the possession for sale of these substances to two, three, or
four years in state prison, and the sale of these substances
to three, four, or five years in the state prison. The
purpose of this bill is to equalize the penalties for the
possession for sale and sale of methamphetamine with the
penalties for the possession for sale of cocaine and heroin
(HSC Section 11351) and for sale of heroin, cocaine, and
cocaine base (HSC Section 11352).
California classifies controlled substances in five schedules
according to their danger and potential for abuse. Schedule I
controlled substances have the greatest restrictions and
penalties, including prohibiting the prescribing of a Schedule
I controlled substance (HSC Sections 11054 to 11058).
Methamphetamine is a Schedule II controlled substance which
means the drug has a high potential for abuse, abuse may lead
to dependence, and the drug has a current accepted medical
use. On the other hand, heroin and cocaine base are Schedule
I controlled substances meaning the drug has a high potential
for abuse, there is a lack of accepted safety, and there is no
accepted medical use. California punishes the possession for
sale, and sale of Schedule I drugs (HSC Sections 11351 and
11352) more harshly than Schedule II, III, IV, and V
substances (HSC Sections 11378 and 11379), and California
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follows the Federal Controlled Substance Schedule in
determining the appropriate scheduling or control of a drug or
substance.
There has not been any evidence presented to indicate that the
existing punishment of 16 months, 2 or 3 years for the
possession for sale of methamphetamine is inadequate. Nor has
there been any evidence presented to indicate that the
existing punishment of two, three, or four years in the state
prison for the sale of methamphetamine is inadequate. Given
the fact that the existing penalties provide for substantial
periods of incarceration, should the Legislature increase the
penalties for these offenses.
3)Voters Rejected This Proposal : The provisions of this bill
which increase the penalties for the possession for sale and
sale of methamphetamine were contained in "Proposition 6:
Police Law Enforcement Funding. Criminal Penalties and Laws.
Initiative Statute", which was on the November 4, 2008
election ballot. Proposition 6 was rejected by the voters by
a margin of 30.8% for and 69.2% against. Should the
Legislature adopt a proposal that was part of an initiative
rejected by almost 70% of California's voters?
4)Prison Overcrowding : The California Policy Research Center
(CPRC) recently issued a report on the status of California's
prisons. The report stated, "California has the largest
prison population of any state in the nation, with more than
171,000 inmates in 33 adult prisons, and the state's annual
correctional spending, including jails and probation, amounts
to $8.92 billion. Despite the high cost of corrections, fewer
California prisoners participate in relevant treatment
programs than comparable states, and its inmate-to-officer
ratio is considerably higher. While the nation's prisons
average one correctional officer to every 4.5 inmates, the
average California officer is responsible for 6.5 inmates.
Although officer salaries are higher than average, their ranks
are spread dangerously thin and there is a severe vacancy
rate." (Petersilia, "Understanding California Corrections",
California Policy Research Center, May 2006). California's
prison population will likely exceed 180,000 by 2010.
According to the Little Hoover Commission, "Lawsuits filed in
three federal courts alleging that the current level of
overcrowding constitutes cruel and unusual punishment ask that
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the courts appoint a panel of federal judges to manage
California's prison population. United States District Judge
Lawrence Karlton, the first judge to hear the motion, gave the
State until June 2007 to show progress in solving the
overpopulation crisis. Judge Karlton clearly would prefer not
to manage California's prison population. At a December 2006
hearing, Judge Karlton told lawyers representing the
Schwarzenegger administration that he is not inclined 'to
spend forever running the state prison system.' However, he
also warned the attorneys, 'You tell your client June 4 may be
the end of the line. It may really be the end of the line.'
"Despite the rhetoric, thirty years of 'tough on crime' politics
has not made the state safer. Quite the opposite: today
thousands of hardened, violent criminals are released without
regard to the danger they present to an unsuspecting public.
Years of political posturing have taken a good idea -
determinate sentencing - and warped it beyond recognition with
a series of laws passed with no thought to their cumulative
impact. And these laws stripped away incentive s for
offenders to change or improve themselves while incarcerated.
"Inmates, who are willing to improve their education, learn a
job skill or kick a drug habit find that programs are few and
far between, a result of budget choices and overcrowding.
Consequently, offenders are released into California
communities with the criminal tendencies and addictions that
first led to their incarceration. They are ill-prepared to do
more than commit new crimes and create new victims . . . . "
[Little Hoover Commission Report, "Solving California's
Corrections Crisis: Time is Running Out", pg. 1, 2 (2007).]
According to the California Department of Corrections and
Rehabilitation, in 2007 there were 2,818 inmates admitted to
the state prison for the crime of possession of
methamphetamine for the purposes of sale (HSC Section 11378)
and 1,564 inmates committed for the sale of methamphetamine
(HSC Section 11379). This bill increases the base term for
these offenses by one additional year, which would severely
aggravate California's already overcrowded correctional
system.
On February 9, 2009, a United States district court three-judge
panel issued a tentative ruling mandating the State of
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California to resolve chronic prison overcrowding. In the
tentative ruling, the judges stated "[t]he evidence is
compelling that there is no relief other than a prisoner
release order that will remedy the unconstitutional prison
conditions." Given the fact that California prisons are
housing twice the population they were built to accommodate,
and with the prospect of early release of inmates imminent,
should the Legislature further contribute to the state's
mounting overcrowding problem by increasing penalties for the
commission of non-violent drug offenses?
5)Increased Incarceration Costs : As noted above, in 2007 there
were 2,818 inmates admitted to the state prison for the crime
of possession of methamphetamine for the purposes of sale (HSC
Section 11378) and 1,564 inmates committed for the sale of
methamphetamine (HSC Section 11379). This bill increases the
average length of stay for these offenders by one year at the
current cost of $46,000 per inmate. If the courts continue to
commit persons convicted of these offenses at approximately
the same rate, this bill will result in increased
incarceration cost of approximately $100 million per year if
these inmates only serve one-half of their prison time. Given
that the current state prison budget exceeds $10 billion per
year, does the Legislature need to increase these costs by
another $100 million?
6)Prior Legislation :
a) AB 318 (Silva), of the 200708 Legislative Session, would
have increased the penalties for the possession for the
purposes of sale of methamphetamine and cocaine. AB 318
failed passage in this Committee.
b) AB 440 (Parra), of the 2007-08 Legislative Session, as
introduced, would have increased the penalties for the
possession for sale and sale on methamphetamine. AB 440
was subsequently amended into an unrelated subject matter,
and was held on the Assembly Appropriations Committee's
Suspense File.
7)Argument in Support : None submitted
8)Argument in Opposition : According to the American Civil
Liberties Union , "The penalty enhancements proposed in AB 858
are unnecessary. Our state prisons and jails are facing an
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overcrowding crisis. The Legislature must stop warehousing
more and more drug offenders for longer and longer periods of
time. The result of such policies has been the building of
more and more prisons to house drug offenders at the expense
of taxpayers who are being denied valuable public services.
The current penalties for these drug-related crimes are more
than sufficient to punish these individuals."
REGISTERED SUPPORT / OPPOSITION :
Support
California District Attorneys Association
California Narcotics Officers Association
California Police Chiefs Association
California Peace Officers' Association
Opposition
American Civil Liberties Union
California Attorneys for Criminal Justice
Legal Services for Prisoners with Children
Analysis Prepared by : Gregory Pagan / PUB. S. / (916)
319-3744