BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
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AB 2492 (Jones-Sawyer) 2
As Amended May 28, 2014
Hearing date: June 24, 2014
Health and Safety Code
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CONTROLLED SUBSTANCES:
MANDATORY 90-DAY JAIL SENTENCE
HISTORY
Source: Author
Prior Legislation: AB 640 (Huber) - 2010, vetoed
Support: Legal Services for Prisoners with Children; Drug Policy
Alliance; American Civil Liberties Union; Conference of
California Bar Associations; Greater Sacramento Urban
League; California Attorneys for Criminal Justice;
California Public Defenders Association
Opposition:California District Attorneys Association
Assembly Floor Vote: Ayes 48 - Noes 23
KEY ISSUE
SHOULD THE MANDATORY 90-DAY JAIL TERM FOR A FIRST-TIME CONVICTION OF
BEING UNDER THE INFLUENCE OF A NARCOTIC OR ONE OF A LIST OF OTHER
SPECIFIED DRUGS BE REPEALED?
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PURPOSE
The purpose of this bill is to repeal the provision mandating a
90-day jail term for a first-time conviction of being under the
influence of one of a list of specified controlled substances.
Existing law 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. (Health & Saf. Code �� 11054 to 11058.)
Existing law provides that no person shall use, or be under the
influence of specified controlled substances contained in
Schedule I, or II of the Uniform Controlled Substance Act, or a
narcotic classified in Schedule III, IV, or V, except pursuant
to authorized administration or valid prescription. Violation
of this statute is a misdemeanor and the defendant shall be
sentenced to a term of not less than 90 days or more than one
year in a county jail. The court may place a person convicted
under these provisions on probation for a period not to exceed
five years and, except as specified, shall in all cases in which
probation is granted require the defendant to be confined in a
county jail for at least 90 days. Other than as specified, the
may not relieve the defendant of the jail obligation. (Health &
Saf. Code � 11550, subd. (a).)
Existing law states that any person that is convicted of using
or being under the influence of a specified controlled substance
when the offense occurred within seven years of the person being
convicted of two or more separate violations of that provision,
and refuses to complete a licensed drug rehabilitation program
offered by the court, as specified, shall be punished by
imprisonment in a county jail for not less than 180 days nor
more than one year. The court may not absolve the defendant
from the obligation of spending at least180 days in a county
jail unless there are no licensed drug rehabilitation programs
reasonably available. A drug rehabilitation program shall not
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be considered reasonably available unless the defendant is
required to pay no more than the he or she is able to pay.
(Health & Saf. Code � 11550, subd. (b).)
Existing law provides that the court may, when it would be in
the interest of justice, permit any person convicted of using or
being under the influence of a specified controlled substance to
complete a licensed drug rehabilitation program in lieu of part
or all of the imprisonment in the county jail. As a condition
of sentencing, the court may require the offender to pay all or
a portion of the drug rehabilitation program. (Health & Saf.
Code � 11550, subd. (c).)
Existing law states 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 deletes the requirement that a person convicted of
using or being under the influence of specified controlled
substances serve at least 90 days in a county jail, and deletes
the requirement that as a condition of probation for commission
of the above offense, the person serve at least 90 days in a
county jail.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
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years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy, known as "ROCA"
(which stands for "Receivership/ Overcrowding Crisis
Aggravation"), the Committee held measures that created a new
felony, expanded the scope or penalty of an existing felony, or
otherwise increased the application of a felony in a manner
which could exacerbate the prison overcrowding crisis. Under
these principles, ROCA was applied as a content-neutral,
provisional measure necessary to ensure that the Legislature did
not erode progress towards reducing prison overcrowding by
passing legislation, which would increase the prison population.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order requiring the state to reduce its prison
population to 137.5 percent of design capacity. The State
submitted that the, ". . . population in the State's 33 prisons
has been reduced by over 24,000 inmates since October 2011 when
public safety realignment went into effect, by more than 36,000
inmates compared to the 2008 population . . . , and by nearly
42,000 inmates since 2006 . . . ." Plaintiffs opposed the
state's motion, arguing that, "California prisons, which
currently average 150% of capacity, and reach as high as 185% of
capacity at one prison, continue to deliver health care that is
constitutionally deficient." In an order dated January 29,
2013, the federal court granted the state a six-month extension
to achieve the 137.5 % inmate population cap by December 31,
2013.
The Three-Judge Court then ordered, on April 11, 2013, the state
of California to "immediately take all steps necessary to comply
with this Court's . . . Order . . . requiring defendants to
reduce overall prison population to 137.5% design capacity by
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December 31, 2013." On September 16, 2013, the State asked the
Court to extend that deadline to December 31, 2016. In
response, the Court extended the deadline first to January 27,
2014 and then February 24, 2014, and ordered the parties to
enter into a meet-and-confer process to "explore how defendants
can comply with this Court's June 20, 2013 Order, including
means and dates by which such compliance can be expedited or
accomplished and how this Court can ensure a durable solution to
the prison crowding problem."
The parties were not able to reach an agreement during the
meet-and-confer process. As a result, the Court ordered
briefing on the State's requested extension and, on February 10,
2014, issued an order extending the deadline to reduce the
in-state adult institution population to 137.5% design capacity
to February 28, 2016. The order requires the state to meet the
following interim and final population reduction benchmarks:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and
137.5% of design bed capacity by February 28, 2016.
If a benchmark is missed the Compliance Officer (a position
created by the February 10, 2016 order) can order the release of
inmates to bring the State into compliance with that benchmark.
In a status report to the Court dated May 15, 2014, the state
reported that as of May 14, 2014, 116,428 inmates were housed in
the State's 34 adult institutions, which amounts to 140.8% of
design bed capacity, and 8,650 inmates were housed in
out-of-state facilities.
The ongoing prison overcrowding litigation indicates that prison
capacity and related issues concerning conditions of confinement
remain unresolved. While real gains in reducing the prison
population have been made, even greater reductions may be
required to meet the orders of the federal court. Therefore,
the Committee's consideration of ROCA bills -bills that may
impact the prison population - will be informed by the following
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questions:
Whether a measure erodes realignment and impacts the
prison population;
Whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a bill corrects a constitutional infirmity or
legislative drafting error;
Whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and,
Whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
1. Need for this Bill
According to the author:
In the 1980s Congress and state legislatures around
the country imposed mandatory minimum sentences for
certain criminal offenses, including but not limited
to being under the influence of illegal drugs. As a
result of these laws, prison and county jail
populations across the nation skyrocketed, causing
overcrowding in federal, state and local facilities,
and shifting valuable resources from important
government priorities to correctional institutions.
Evidence has shown that mandatory minimum sentences
are not an effective deterrent to reducing crime. A
Policy Institute study entitled, "Treatment Not
Incarceration," reported that drug offenders sentenced
under mandatory minimum guidelines have a two-thirds
chance of recidivating. Additional evidence shows
that investing in drug treatment rather than
incarceration saves tax payer dollars. A RAND
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Corporation study entitled, "Are Mandatory Minimum
Sentences Effective," found that one dollar spent on
drug treatment saves society $7.50 in reduced crime
and regained productivity.
In this same study individuals who were allowed to
complete a community based drug rehabilitation program
instead of county jail yielded a benefit of $8.87 for
every program dollar spent. Furthermore, offenders
who underwent treatment showed a decline of
approximately two-thirds in overall arrests and a
reduction in drug possession by more than 50 percent.
Consequently, mandatory minimum sentencing is an
outdated approach to addressing drug violations.
Moreover, arbitrary sentencing requirements for a
minor offense are not necessary for a situation where
people do no harm to others. AB 2492 will give judges
the discretion they need to sentence people according
to both previous offenses as well as the circumstances
surrounding their crime.
2. Substance Abuse and Crime Prevention Act - Proposition 36 -
Issues
A person convicted of the offense of being under the influence
of a controlled substance shall be offered treatment on
probation, without incarceration, under the Substance Abuse and
Crime Prevention Act (SACPA Prop. 36 of the Nov. 2000 General
Election). A person in SACPA who violates drug-related
conditions of probation for a third time is terminated from the
program and faces sentencing. Drug-related violations of the
conditions of probation include testing positive for the
presence of drugs in one's system. As drug addiction or
dependence is a chronically relapsing disease or condition,<1>
it would not be unusual for a person granted probation for being
under the influence of a drug to relapse and use an illicit drug
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<1>
http://www.drugabuse.gov/publications/media-guide/science-drug-ab
use-addiction.
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over the course of a 12 or 18 month SACPA program.
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Thus, a person who fails under SACPA after being convicted of
being under the influence of a specified controlled substance
may be in need of further treatment and be amenable to
treatment, although over a longer period of time than provided
under SACPA or other court-based treatment or rehabilitation
programs. Existing law requires the court to incarcerate a
person convicted of being under the influence of a drug for a
minimum of 90 days. A similar minimum term does not apply to a
defendant convicted of possession of a controlled substance,
although that person may be as drug-dependent as a person
convicted of being under the influence of a controlled
substance.
It appears that jail-based drug treatment programs are few and
far between. It is not likely that a person committed to jail
for a 90-day minimum term would receive any significant
treatment while incarcerated. Further, the presence of drugs
and drug use in jails and prisons is relatively common.
3. Deferred Entry of Judgment or Pre-Plea Diversion and the
Substance Abuse and Crime Prevention Act of 2000 (SACPA -
Proposition 36 of the 2000 General Election
Defendants convicted of the offense considered by this bill -
being under the influence of a controlled substance in violation
of Health and Safety Code Section 11550 - are eligible for
deferred entry of judgment. It appears that a defendant
convicted under Section 11550 and admitted to a rehabilitation
program would not be subject to the mandatory 90-day minimum
term if he or she successfully completes the program. If the
defendant failed in the program, the court would impose
judgment, including the mandatory term.
Deferred entry of judgment and true pre-plea diversion (DEJ) are
distinct programs from the Substance Abuse and Crime Prevention
Act - SACPA ("Prop 36") - program. After enactment of SACPA in
2000, the California Attorney General opined that SACPA did not
repeal DEJ by implication. (84 Ops. Cal. Atty. Gen. 85 - 2001.)
Deferred entry of judgment - as the name of the program denotes
- applies prior to imposition of judgment and sentence. SACPA
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is a probation program under which a person convicted of a
non-violent drug possession offense must be offered treatment,
without incarceration, on probation. Further, the offenses
covered by the two programs, while overlapping to a great
extent, are not the same. The offenses covered under SACPA are
broader than those included under DEJ.
The procedures for the programs are also different. The
prosecutor determines if the defendant meets the eligibility
requirements for DEJ. The trial court cannot overturn the
prosecutor's determination of ineligibility. If the defendant
disagrees with the prosecutor's determination, his or her only
remedy is by appeal to the Court of Appeal. In contrast, the
trial court determines whether a convicted defendant is eligible
for probation under SACPA. A defendant must plead guilty before
being placed in a DEJ program.<2> A person who is convicted at
trial of non-violent drug possession is eligible for SACPA,
unless a disqualifying factor, such as possession of a weapon at
the time of the offense. A defendant who fails in a DEJ program
is subject to imposition of judgment and sentencing. However,
if the defendant's conviction is for a non-violent drug
possession offense, he or she shall be offered treatment on
probation under SACPA. (In re Scoggins (2001) 94 Cal.App.4th
650, 652-658.) As the covered offenses and eligibility
requirements are broader under SACPA than DEJ, it is most likely
that a person who fails in DEJ would be eligible for SACPA.
As noted in Comment #2, drug addiction or dependency is a
chronic relapsing disease. Many rounds of treatment may be
necessary.
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<2> With the agreement of the court, the district attorney and
public defender, a county can elect to offer a true diversion
program, under which the defendant participates in a
rehabilitation program without pleading guilty. The entire case
begins anew if the defendant fails on diversion. (Pen. Code �
1000.5.)
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