BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
1
5
0
SB 1506 (Leno) 6
As Introduced February 24, 2012
Hearing date: April 17, 2012
Health and Safety Code
JM:dl
DRUG POSSESSION FOR PERSONAL USE
HISTORY
Source: California Chapter of the NAACP; Drug Policy Alliance;
American Civil Liberties Union
Prior Legislation: None Directly on Point
Support: Amity Foundation; A.W.A.R.E (Always working toward
Advancing Recovery Environments); Beacon House
Association of San Pedro; Bi-Valley Medical Clinic,
Inc.; Broken No More; Bristo Anesthesia Service;
California Association of Alcohol and Drug Program
Executives; California Attorneys for Criminal Justice;
California Coalition for Women Prisoners; California
Drug Counseling, Inc.; California Immigrant Policy
Center; California Opioid Maintenance Providers;
California Public Defenders Association; Californians
United for a Responsible Budget (CURB); Center for
Living and Learning; Center on Juvenile and Criminal
Justice; Centerpoint Inc.; Communities in Schools;
Community Coalition; Counseling Partners; Cri-Help,
Inc.; Dolores Street Community Services; East Bay
Community Law Center; Ella Baker Center for Human
Rights; Facts Education Fund; Footlights Publishing,
Inc.; Forward Together; Friends Committee on
(More)
SB 1506 (Leno)
PageB
Legislation of California; Further the Work, LLC;
Healthcare Services, Inc.; Homeless Health Care Los
Angeles; Justice Now; Law Enforcement Against
Prohibition (Leap); Lawyers' Committee for Civil
Rights; Leadership through Empowerment, Action, and
Dialogue Inc.; Legal Services for Children; Legal
Services for Prisoners with Children; Lincoln Memorial
Congregational United Church of Christ; Los Angeles
Community Action Network; National Association for
Working Women; National Association of Social Workers,
California Chapter Women's Council; National Council
on Alcohol and Drug Dependence of the San Fernando
Valley; National Employment Law Project; National Gay
and Lesbian Task Force; Parents for Addiction
Treatment and Healing; Peace Over Violence; People in
Progress, Inc.; Primary Purpose Substance Free Living;
Progressive Christians Uniting; Rubicon Programs; RYSE
Youth Center; San Fernando Recovery Center; San
Fernando Valley Veterans Employment Committee; SLO
Bangers Syringe Exchange; Students for Sensible Drug
Policy, Berkeley Chapter; Tarzana Treatment Centers;
TGI Justice Project; The Greenlining Institute; The
Salvation Army Hope Harbor; Time for Change
Foundation; Trans-Latina Coalition; William C.
Velasquez Institute; VIP Mentors; Walden House; West
Coast Drug and Alcohol Education Program; Youth
Justice Coalition
Opposition:California District Attorneys Association; California
State Sheriffs' Association; California Police Chiefs
Association; California Narcotics Officers' Association
KEY ISSUE
SHOULD SIMPLE POSSESSION OF A CONTROLLED SUBSTANCE BE A MISDEMEANOR?
PURPOSE
(More)
SB 1506 (Leno)
PageC
The purpose of this bill is to provide that simple possession of
a controlled substance shall be a misdemeanor.
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 for drug offenses:
Heroin, cocaine and other specified drugs (section references
are to the Health and Safety Code):
� � 11350 possession - felony -
prison term of 16 months, 2 years or 3 years<1>;
� � 11351 possession for sale or distribution -
felony - prison for 2, 3 or 4 years;
� � 11351.5 possession of cocaine base
(crack) for sale - felony - prison for 3, 4, 5
years; and
� � 11352 sale or distribution -
felony - 3, 6 or 9 years.
Methamphetamine and other specified drugs:
� � 11377 possession - alternate
felony-misdemeanor;
� � 11378 possession for sale or
distribution - felony; and
� � 11379 sale or distribution -
felony, 2, 3 or 4 years.
Marijuana:
--------------------------
<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.
(More)
SB 1506 (Leno)
PageD
� � 11357 possession of under an
ounce is an infraction;
� � 11357 possession of hashish -
alternate felony-misdemeanor;
� � 11358 cultivation or processing
- felony;
� � 11359 possession for sale -
felony; and
� � 11360 sale or distribution -
felony, 2, 3 or 4 years.
Existing law provides that being under the influence of a
specified controlled substance is a misdemeanor. (Health & Saf.
Code � 11550.)
Existing Law - Proposition 36 (Nov. 2000 election), the
Substance Abuse Treatment and Crime Prevention Act of 2000
(SACPA) - requires non-violent drug possession offenders to be
offered drug treatment on probation, which shall not include
incarceration as a condition of probation. (Pen. Code ��
1210.1 and 3063.1.)
Existing law provides that non-violent drug possession offenses
include:
� Unlawful use, possession for personal use, or
transportation for personal use of a controlled substance.
� Being under the influence of a controlled substance.
(Health and Saf. Code � 11550)
� SACPA eligibility is not affected by the classification
of the underlying drug possession offense as a felony or
misdemeanor. The controlling factor is that the drug is a
controlled substance. (Pen. Code � 1210)
Existing law requires persons who have been convicted of one of
a list of numerous drug and drug-related crimes, including
possession, possession for sale and sale of various controlled
substances to register with the local police chief or sheriff,
as specified. The registration requirement does not apply to a
(More)
SB 1506 (Leno)
PageE
person convicted of misdemeanor possession of methamphetamine
(or a specified drug such as psilocybin mushrooms). (Health &
Saf. Code � 11590.)
This bill provides that simple possession of a controlled
substance is a misdemeanor.
This bill makes the registration provisions in Health and Safety
Code Section 11590 consistent by providing in each relevant
provision that a person convicted of the misdemeanor of
possession of methamphetamine (or other specified drugs) is not
required to register with law enforcement.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
("ROCA")
In response to the unresolved prison capacity crisis, since
early 2007 it has been the policy of the chair of the Senate
Committee on Public Safety and the Senate President pro Tem to
hold legislative proposals which could further aggravate prison
overcrowding through new or expanded felony prosecutions. Under
the resulting policy known as "ROCA" (which stands for
"Receivership/Overcrowding Crisis Aggravation"), the Committee
has held measures which create a new felony, expand the scope or
penalty of an existing felony, or otherwise increase the
application of a felony in a manner which could exacerbate the
prison overcrowding crisis by expanding the availability or
length of prison terms (such as extending the statute of
limitations for felonies or constricting statutory parole
standards). In addition, proposed expansions to the
classification of felonies enacted last year by AB 109 (the 2011
Public Safety Realignment) which may be punishable in jail and
not prison (Penal Code section 1170(h)) would be subject to ROCA
because an offender's criminal record could make the offender
ineligible for jail and therefore subject to state prison.
Under these principles, ROCA has been applied as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress towards reducing prison
overcrowding by passing legislation which could increase the
prison population. ROCA will continue until prison overcrowding
(More)
SB 1506 (Leno)
PageF
is resolved.
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). 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 January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances. Design capacity is the number of inmates a
prison can house based on one inmate per cell, single-level
bunks in dormitories, and no beds in places not designed for
housing. Current design capacity in CDCR's 33 institutions is
79,650.
On January 6, 2012, CDCR announced that California had cut
prison overcrowding by more than 11,000 inmates over the last
six months, a reduction largely accomplished by the passage of
Assembly Bill 109. Under the prisoner-reduction order, the
inmate population in California's 33 prisons must be no more
than the following:
167 percent of design capacity by December 27, 2011
(133,016 inmates);
155 percent by June 27, 2012;
(More)
SB 1506 (Leno)
PageG
147 percent by December 27, 2012; and
137.5 percent by June 27, 2013.
This bill does not aggravate the prison overcrowding crisis
described above under ROCA.
COMMENTS
1. Need for This Bill
According to the author:
California annually spends hundreds of millions of taxpayer
dollars to incarcerate drug possession defendants - an
irresponsible use of scarce resources that exacerbates jail
overcrowding. For decades, commissions and bipartisan panels
have recommended against lengthy incarceration for these
low-level offenders so as to conserve resources and more
effectively secure public safety. Under the Public Safety
Realignment Act, which keeps most simple drug possession
defendants at the county level, the need to prioritize public
safety resources and maximize local flexibility is urgently
needed.
SB 1506 will provide for up to one year of incarceration in
county jail, and a period of probation not to exceed five
years (in practice, three years of probation is common).
Participation in drug treatment and/or other programs may be
ordered as a condition of probation. Statutory eligibility
for drug courts, Prop 36, and other diversion programs will
not be affected. SB 1506 will provide counties flexibility to
fund these programs, after years of devastating cuts
SB 1506 does not apply to transporting, selling, manufacturing
or possessing drugs for sale .
SB 1506 thus reserves prison and jail space for more serious
offenders, eases pressure on California's court system and
provides millions of dollars in annual savings for state and
local governments. The Legislative Analyst's Office found
(More)
SB 1506 (Leno)
PageH
that revising the penalty for simple drug possession will save
the state and counties a combined $1 billion in just five
years, with most of that accruing to local governments.
SB 1506 promotes public safety by removing barriers to
re-entry that accompany a felony conviction. The stigma
associated with a felony makes it very hard to get a job, a
loan, or an apartment. This bill removes many of these
obstacles, allowing thousands to be hired, pay taxes, and
raise their children with a sense of security. Former
defendants not saddled with felony convictions will have
opportunities for successful rehabilitation and reintegration.
Research associates harsh penalties with worse outcomes,
including recidivism. A 2002 study found: "?�There is] no
evidence that imprisonment reduced or delayed recidivism,
either for felony offenders generally or for drug offenders
specifically. To the contrary, we found that offenders
sentenced to prison failed more often and more quickly than
offenders placed on probation and that incarcerated drug
offenders had significantly higher recidivism rates than any
other offenders."
SB 1506 will free up funding that can be used effectively to
help more people get the treatment they need. Evidence shows
that treatment reduces crime. A1992-1997 study showed that,
following drug treatment, arrests for any crime declined by
64%; arrests for drug selling fell 78%, shoplifting 82% and
drug possession 51%. A more recent study showed drug
treatment was associated with 54% fewer days of crime for
profit.
Thirteen states and the federal government punish simple drug
possession as a misdemeanor. These jurisdictions have lower
crime rates than felony states and higher rates of people
entering treatment. In states that charge drug possession as a
misdemeanor, the average violent crime rate was 376.4 per
100,000 people. Among felony states, the average violent
(More)
SB 1506 (Leno)
PageI
crime rate was 397.5. Misdemeanor states had an average
property crime rate of 2,913.2 per 100,000. Felony states had
a higher average property crime rate - 3,071.9 per 100,000.
A vast majority of California voters support reduced penalties
for people convicted of personal drug possession. In 2000,
61% of voters passed Proposition 36, the Substance Abuse and
Crime Prevention Act, which provides treatment instead of
incarceration for drug use. In a 2011 poll by Lake Research
Partners, 72% of Californians favored reducing the penalty for
drug possession to a misdemeanor.
2. Substantially Disproportionate Prosecution and Incarceration
of African Americans and Latinos Relative to Drug Use and
Commerce
Rates of Drug Use by Race and Ethnicity
Blacks, whites and Latinos use drugs at roughly equivalent
rates, with Latinos using the least. Asians use illicit drugs at
a lower rate<2> than other ethnic or racial groups. The data in
the following chart is from the National Survey on Drug Use and
Health published by United States Department of Health and Human
Services (DHHS):
-------------------------------------------------------------------
|YEAR |Rate of Drug |Rate of Drug |Rate of Drug |
| |Use - Whites |Use - Blacks |Use - Latinos |
|----------------+----------------+----------------+----------------|
|2002 |8.5% |9.7 % |7.2% |
|----------------+----------------+----------------+----------------|
---------------------------
<2> Among Asians, the percentage using illicit drugs in the past
month was 3.5 percent in 2002, 3.8 percent in 2003, 3.1 percent
in both 2004 and 2005, 3.6 percent in 2006, 4.2 percent in 2007,
3.6 percent in 2008, 3.7 percent in 2009, and 3.5 percent in
2010.
(More)
SB 1506 (Leno)
PageJ
|2003 |8.3% |8.7% |8.0% |
|----------------+----------------+----------------+----------------|
|2004 |8.1% |8.7% |7.2% |
|----------------+----------------+----------------+----------------|
|2005 |8.1% |9.7% |7.6% |
|----------------+----------------+----------------+----------------|
|2006 |8.5% |9.8% |6.9% |
|----------------+----------------+----------------+----------------|
|2007 |8.2% |9.5% |6.6% |
|----------------+----------------+----------------+----------------|
|2008 |8.2% |10.1% |6.2% |
|----------------+----------------+----------------+----------------|
|2009 |8.8% |9.6% |7.9% |
|----------------+----------------+----------------+----------------|
|2010 |9.1% |10.7% |8.1% |
-------------------------------------------------------------------
Incarceration Rates in Drug Offenses by Race and Ethnicity
(White, Black and Latino Defendants)
According to a1999-2005 Sentencing Project Study,<3> African
Americans are imprisoned for felony drug crimes at a rate five
times greater than their proportion of the population. Whites
are incarcerated for felony drug crimes at rate that is S or
their proportion of the population.
-------------------------------------------------------------------
|YEAR |Whites - |Blacks - |Latinos - |
| |Percentage of |Percentage of |Percentage of |
| |State Prison |State Prison |State Prison |
| |Drug Crime |Drug Crime |Drug Crime |
| |Populations |Population |Population |
|----------------+----------------+----------------+----------------|
|1999 |20.2% |57.6% |20.7% |
|----------------+----------------+----------------+----------------|
|2000 |23.2% |57.9% |17.2% |
|----------------+----------------+----------------+----------------|
|2001 |23.3% |56.8% |19.1% |
---------------------------
<3> http://sentencingproject.org/doc/dp_raceanddrugs.pdf
(More)
SB 1506 (Leno)
PageK
|----------------+----------------+----------------+----------------|
|2002 |24.3% |47.5% |23.3% |
|----------------+----------------+----------------+----------------|
|2003 |25.9% |53.0% |20.0% |
|----------------+----------------+----------------+----------------|
|2004 |26.4% |45.1% |20.8% |
|----------------+----------------+----------------+----------------|
|2005 |28.5% |44.8% |20.2% |
-------------------------------------------------------------------
These data must be viewed in light of the proportion of whites,
blacks and Latinos in the population. According to the United
States Census:
-----------------------------------------------------------------
|All whites, |Non-Hispanic |African |Latino/Hispanic |
|including |whites |Americans | |
|Hispanics of | | | |
|European | | | |
|origin | | | |
|--------------+----------------+---------------+-----------------|
|72.4% |63.7% |12.6% |16.3% |
| | | | |
-----------------------------------------------------------------
In 2000, Human Rights Watch researchers found that through 1996
African Americans were 13 times more times more likely to be
imprisoned for drug crimes than whites.<4> The Sentencing
Project study indicates that that disparity has been reduced
somewhat in recent years, although the disparity is still
striking. These disproportionate prosecution rates exist
despite the fact that African Americans and whites use drugs in
roughly equivalent proportions. Other studies have reported
that white youth sell drugs at a much higher rate than African
American youth.
---------------------------
<4> http://www.hrw.org/reports/2000/usa/
(More)
SB 1506 (Leno)
PageL
3. Drug Use and Commerce by College Students and Adolescents,
Analyzed by Race and Ethnicity; Racial Disparities in
Juvenile Drug Prosecutions
In 2007, the National Center on Addiction and Substance Abuse at
Columbia University published a study of drug and alcohol use by
college students<5>. The study showed substantially higher use
of drugs by whites than African Americans. For example, white
students were twice as likely to illicitly use prescription
drugs, marijuana and MDMA (ecstacy) than African American
students. Students at traditionally Black colleges had
particularly low drug use rates.
The 2011 National Institute of Health (NIH) study of adolescent
drug use<6> found that "African American students have
substantially lower rates of use of most ? drugs than do whites
at all three grade levels �10th-12th grades]." (Monitoring the
Future, National Results on Adolescent Drug Use, Johnston, et
al., NIH, 2012, p. 45.)
Despite the fact that white adolescents use drugs at much higher
rates than minority adolescents, the United States Department of
Justice Office of Juvenile Justice and Delinquency Programs
(OJJDP) found<7> that in 2006 that "juvenile arrests
disproportionately involved minorities." African American
minors were arrested for drug offenses (30% of all drug arrests)
at a rate approximately 3 times their proportion of the
population. (Juv. Justice Bulletin, Nov. 2008, U.S. DOJ, OJJDP,
p. 10.)
Another study published in the American Journal of Alcohol and
Drug Abuse in March of 2010 analyzed data from the National
---------------------------
---------------------------
<5>
http://www.casacolumbia.org/articlefiles/380-Wasting%20the%20Best
%20and%20the%20Brightest.pdf
<6>
http://monitoringthefuture.org/pubs/monographs/mtf-overview2011.p
df
<7> https://www.ncjrs.gov/pdffiles1/ojjdp/221338.pdf
(More)
SB 1506 (Leno)
PageM
(More)
SB 1506 (Leno)
PageN
Survey on Drug Use and Health. According to a summary<8>
published by NIH, the study found that white and African
American youth engaged in drug commerce at equivalent rates.
However, white youth used and sold a wide range of drugs.
African American youth were more likely to use and sell
marijuana. White youth who were engaged in drug commerce were
also likely to be "entrenched" users of drugs such as cocaine.
4. Felony Drug Possession and Misdemeanor Drug Possession States:
Comparison of Drug Use and Drug Treatment Rates
President Nixon declared a war on drugs in1971. After that
declaration, drug penalties generally increased and additional
anti-drug penalties programs were steadily enacted and
developed. California adopted the federal controlled schedules
and set penalties based on the federal schedules in 1972. Nixon
established the Drug Enforcement Administration in 1973.
President Reagan signed legislation establishing mandatory
minimums for drug crimes, including much higher penalties for
simple possession of "crack cocaine" than powdered cocaine, in
1986. (The five year minimum sentence for simple possession of
five grams of crack cocaine was only recently repealed by Public
Law 111-220.) California enacted higher penalties for
possession of cocaine base for sale in 1986. George H.W. Bush
appointed the first drug czar in 1989. Inherent in these
policies is a belief that relatively severe penalties for drug
crimes, including drug possession, deter people from using or
selling drugs. (Timeline, America's War on Drugs, NPR, April 2,
2007<9>; Health & Saf. Code �� 11054-11058; 11350-11383.7,
11351.5.)
Similarly, in discussions on this bill, law enforcement
representatives and prosecutors have argued that the threat of
---------------------------
<8> http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2871399/ T
<9> http://www.npr.org/templates/story/story.php?storyId=9252490
(More)
SB 1506 (Leno)
PageO
felony penalties is necessary to induce drug users to stop
taking drugs and to engage in treatment. In particular, it was
argued that drug possession defendants will refuse Prop 36
treatment on probation unless the consequence of that decision
is a felony.
The long history of punitive drug laws and current arguments
that felony penalties deter drug use raise issues about whether
or not felony penalties actually deter drug use and induce
people to participate in treatment. The author has provided the
Committee with studies comparing rates of drug use and drug
treatment in states that treat simple drug possession as a
felony with states that treat simple drug possession as a
misdemeanor. The data indicate that drug use rates are slightly
lower in states in which drug possession is a misdemeanor than
in states where drug possession is a felony. In particular,
misdemeanor drug possession states had an average illicit drug
use rate in the population of 3.55%, excluding marijuana use.
Felony possession states had an average rate of use of 3.61%.
Among felony states with more severe penalties than California,
the average rate rose slightly to 3.62%.<10>
Comparisons of Misdemeanor and Felony Drug Possession States -
Drug Use Rates as a Percentage of the Population
-----------------------------------------------------------------
|Rate of Drug Use in |Rate of Drug Use in |California - Mostly |
|Felony Possession |Misdemeanor |Felony Possession, |
|States |Possession States |Wobbler |
| | |Methamphetamine |
|---------------------+---------------------+---------------------|
|3.61% |3.55% |3.50 % |
-----------------------------------------------------------------
Making drug possession a misdemeanor does not appear to reduce
drug treatment participation. Treatment rates in misdemeanor
states are significantly higher than in felony states. Further,
among the 13 states in which drug possession is a
---------------------------
---------------------------
<10> http://www.samhsa.gov/data/2k5State/AppB.htm#TabB.6
(More)
SB 1506 (Leno)
PageP
(More)
SB 1506 (Leno)
PageQ
misdemeanor<11>, six are among those with the highest rate of
drug treatment. These results were not uniform, as some states
with misdemeanor penalties had relatively low rates of
treatment, such as Wisconsin with 162 in treatment per 100,000
people. However, the misdemeanor possession state of New York
had a very high treatment rate of 995 per 100,000. Further, a
number of felony possession states - Nebraska Alabama and
Arizona for example - had treatment rates below 300 per 100,000,
and others, such as North Dakota, Texas and Florida, had
treatment rates well below 200 per 100,000.
Drug Treatment Rates per 100,000 people in Felony and
Misdemeanor Possession States
-----------------------------------------------------------------
|Misdemeanor States |Felony States - |National Average - |
|-Treatment Rates |Treatment Rates |Treatment Rates |
|---------------------+---------------------+---------------------|
|513 per 100,000 |432 per 100,000 |434 per 100,000 |
-----------------------------------------------------------------
5. Jail Capacity Issues - Treatment Inducement Concerns
Jail Capacity, Alternative Sanctions and Drug Treatment Issues
Generally
Concerns have been raised that there is very limited capacity in
county jail to incarcerate misdemeanor drug defendants,
particularly in light of criminal justice realignment of
low-level felons from prison to jails. Many county jails
operate under court-imposed population limits. Some
representatives of sheriffs' offices and prosecutors have argued
that defendants convicted of misdemeanor drug possession will
serve little or no time in jail, regardless of the sentence
imposed by the court. It is further argued that many defendants
will refuse probation and treatment under Proposition 36 because
they believe they will only spend a short time in jail for any
sentence.
---------------------------
<11> The misdemeanor states are Delaware, Iowa, Maine,
Massachusetts, Mississippi, New York, Pennsylvania, South
Carolina, Tennessee, Vermont, West Virginia, Wisconsin, Wyoming
and the District of Columbia.
(More)
SB 1506 (Leno)
PageR
However, Penal Code � 1203.017<12> authorizes any county board
of supervisors to establish a program of involuntary home
detention, which may include electronic monitoring, if the
county jail lacks sufficient space to house all sentenced
misdemeanor inmates. The involuntary home detention program can
include "reasonable rules and regulations." (Pen. Code �
1203.017, subd. (b).) It appears that those rules and
regulations could include a ban on use of controlled substances
and alcohol and mandatory drug testing to insure compliance.
This bill could perhaps be amended to make it clear that a court
could direct the sheriff to place any defendant convicted of a
drug misdemeanor who refuses probation on involuntary home
detention if the defendant would otherwise be released from jail
due to overcrowding. To address concerns that home detention
with drug testing would not sufficiently induce a defendant to
accept drug treatment on probation under SACPA (Prop 36), the
bill could perhaps provide that upon violation of a drug or
alcohol use prohibition on home detention, the defendant would
serve the balance of the sentence in jail custody.
SACPA (Substance Abuse and Crime Prevention Act - Prop 36)
Issues
SACPA requires the court to offer a defendant treatment on
probation, with no incarceration, for non-violent drug
possession. SACPA has received little or no state funding for
about five years. The SACPA Initiative - Proposition 36 in 2000
- provided General Fund funding of $120 million per year through
Budget year 2005-06. Limited federal grant money was available
after the initial funding ended. (LAO - the Future of Prop 36
Funding, Nov. 2005.)
SACPA was funded through the Budget in 2006, but trailer bill
legislation (SB 1137 (Ducheny) Ch. 63, Stats. 2006) authorized
short-term incarceration of SACPA defendants. (LAO, Major
Features of the 2006 Budget, pp. 17-18.) The incarceration
provisions were challenged and found to violate the terms of the
initiative. (Gardner v. Schwarzenegger (2009) 178 Cal.App.4th
---------------------------
<12> Enacted by SB 959 (Romero) Ch. 252, Stats. 2007.
(More)
SB 1506 (Leno)
PageS
1366.) The funding contemplated in the 2006 Budget was not
provided.
Proposition 36 funding at the state level was set at $18 million
through the Offender Treatment Program (drug court model) in the
2009-2010 Budget, supplemented by a one-time designation of $45
million in federal grant funds. State Prop 36 funding was
entirely eliminated in the 2010-2011 Budget. (LAO, Substance
Abuse Treatment in Criminal Justice, March 2010; LAO July 2009
Budget Package.)
However, courts must still provide SACPA treatment to
defendants, but the counties must bear the cost of the program.
Treatment capacity is therefore quite limited. Even when SACPA
was funded through the General Fund, the official studies of
SACPA conducted by UCLA concluded that the programs were greatly
underfunded, leading to waiting lists for programs. The studies
found that the funding and capacity shortfalls limited the
effectiveness of the program.
(http://www.uclaisap.org/Prop36/documents/sacpa080405.pdf.)
Drug Courts after Realignment
Drug courts are one form of "collaborative courts."<13>
Collaborative courts involve close cooperation among the court,
defendant, probation, treatment providers and counsel. The
judge personally monitors a defendant's progress through regular
hearings. Defendants in collaborative courts are typically on
probation and subject to immediate sanctions, such as "flash
incarceration" for a day or two, for program violations. Drug
courts may handle defendants charged solely with drug offenses.
Drug courts also may handle defendants convicted of other
offenses, such as theft, whose criminality is driven by drug
dependence. Prior to criminal justice realignment, drug courts
were funded at the state level. Realignment has transferred
drug court funding to the county level, but specific tax and
other revenue sources are designated for this purpose. Counties
---------------------------
<13> http://www.courts.ca.gov/programs-collabjustice.htm . The
California Judicial Council website includes a section on
collaborative courts generally.
(More)
SB 1506 (Leno)
PageT
must create a County Local Revenue Fund and a Health and Human
Services Account in order to receive the designated funds from
the Controller.
Counties no longer need to submit a drug court plan to the
California Department of Drug and Alcohol Programs (DADP).
Under realignment, counties have flexibility to fund and
structure drug court programs. (DADP Drug Court Realignment
Bulletin, Sept. 30, 2011.) Drug courts can serve
misdemeanants. Drug court representatives informed Committee
staff that drug courts are most effective in serving high-needs,
high-risk defendants. Nevertheless, a defendant convicted of a
misdemeanor drug offense, especially where he or she has a long
history of abuse, could be a particularly good candidate for
drug court.
(More)
Researchers have found that casual drug use offenders should not
be placed in intensive treatment. Mixing long-time drug abusers
with less drug involved defendants may normalize relatively
na�ve users to habitual drug use, paradoxically increasing
recidivism among low-risk offenders. Intensive drug court
programs are most effective for long-time drug abusers, and
should be limited to such offenders. Low-risk offenders should
be assigned to less intensive and less costly probation or
pretrial monitoring programs. (Marlowe, Festinger, et al.
"Adapting Judicial Supervision to the Risk Level of Drug
Offenders" Drug and Alcohol Dependence 88(Suppl. 2):S4-13,
2007.)
UNDER REALIGNMENT AND THIS BILL, WILL MISDEMEANOR DRUG
DEFENDANTS BE ELIGIBLE AND APPROPRIATE CANDIDATES FOR DRUG
COURTS?
SHOULD ADMISSION TO DRUG COURTS AND PLACEMENT IN DRUG COURT
PROGRAMS BE MADE ON AN INDIVIDUAL BASIS, CONSIDERING RISK AND
TREATMENT NEEDS?
6. Simple Possession of Methamphetamine: Felony and Misdemeanor
Prosecution Rates in California
The three most widely-known drugs of abuse are cocaine, heroin
and methamphetamine. Simple possession of heroin or cocaine is
a felony, while simple possession of methamphetamine is an
alternate felony -misdemeanor (wobbler). A prosecutor has full
discretion to charge simple possession of methamphetamine as a
misdemeanor or a felony under Health and Safety Code Section
11377, subdivision (a). Prosecutors have told Committee staff
that they very often charge simple methamphetamine possession as
misdemeanor. They argued that the bill would have little effect
on methamphetamine prosecutions, reducing savings and other
benefits.
The Stanford University Public Policy Practicum published a
(More)
SB 1506 (Leno)
PageV
study in 2010 on wobblers<14> called "Wobblers and Criminal
Justice in California, a Study in Prosecutorial Discretion."<15>
The study focused on Health and Safety Code Section 11377,
subdivision (a), which is most often used to prosecute
methamphetamine crimes. The authors chose that crime because it
comprises "over eleven percent of all charged cases in
California in 2007, and because charging variation across
counties was the greatest for this crime." (Stan. Wobbler
Study, p. 8.)<16>
Seven district attorneys explained their charging discretion.
The Ventura County District Attorney stated that it was never
appropriate to charge methamphetamine possession as a
misdemeanor. The other prosecutors "generally consider the same
three case-related factors - quantity of drug, prior criminal
record and existence of multiple charges." (Stan. Wobbler
Study, p. 14.) However, the data establishes that prosecutors
in each county apply these factors very differently.
Statewide, 18% of methamphetamine cases were charged as
misdemeanors. However, the statewide average certainly does not
truly reflect prosecutorial practice in each of the 58 counties.
Charging rates for misdemeanor methamphetamine prosecutions
vary widely, ranging from 0% in Fresno and Stanislaus Counties
to 50% in San Francisco and Contra Costa Counties.
Representative data from the study is set out below:
----------------------------------------------------
|County |11377 (a) |Percentage of |
| |prosecutions |11377 (a) |
---------------------------
<14>
http://ips.stanford.edu/sites/default/files/shared/DA%20Discretio
n%20Final%20Report.pdf
<15> Hereinafter - Stan. Wobbler Study
<16> Health and Safety Code Section 11377 includes drugs other
than methamphetamine, such as psilocybin
mushrooms. However, the great majority of prosecutions under
that section involve methamphetamine. Most of the examples
cited in the study involved methamphetamine. (Stan. Wobbler
Study, pp. 17-18, 22. )
SB 1506 (Leno)
PageW
| | |charges filed as |
| | |misdemeanor |
|----------------+-----------------+-----------------|
|All Counties |29,341 |18% |
|----------------+-----------------+-----------------|
|Alameda |985 |11% |
|----------------+-----------------+-----------------|
|Butte |308 |4% |
|----------------+-----------------+-----------------|
|Contra Costa |413 |50% |
|----------------+-----------------+-----------------|
|Fresno |1,249 |0% |
|----------------+-----------------+-----------------|
|Kern |1,695 |1% |
|----------------+-----------------+-----------------|
|Los Angeles |3,686 |33% |
|----------------+-----------------+-----------------|
|Orange |4,472 |24% |
|----------------+-----------------+-----------------|
|San Diego |824 |25% |
|----------------+-----------------+-----------------|
|San Francisco |210 |50% |
|----------------+-----------------+-----------------|
|Santa Clara |2,123 |20% |
|----------------+-----------------+-----------------|
|Stanislaus |567 |0% |
|----------------+-----------------+-----------------|
|Sutter |108 |40% |
|----------------+-----------------+-----------------|
|Ventura |406 |2% |
|----------------+-----------------+-----------------|
|Yolo |107 |4% |
----------------------------------------------------
DO THE WIDE DIFFERENCES BETWEEN DISTRICT ATTORNEY OFFICES IN
CHARGING METHAMPHETAMINE POSSESSION CASES INDICATE THAT A SINGLE
STATE STANDARD, SUCH AS THE MISDEMEANOR ESTABLISHED BY THIS
BILL, IS APPROPRIATE?
SB 1506 (Leno)
PageX
***************