BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
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SB 1283(Galgiani)
As Introduced: February 21, 2014
Hearing date: April 22, 2014
Health and Safety Code
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SYNTHETIC CANNABINOIDS AND STIMULANTS
HISTORY
Source: California Narcotics Officers Association
Prior Legislation: AB 486 (Hueso), Chapter 656, Statutes of 2011
SB 420 (Hernandez) Chapter 420, Statutes of 2011
AB 2420 (Hueso) (2012) Died in Assembly Public
Safety
Support: California District Attorneys Association; California
Police Chiefs Association; International Faith Based
Coalition
Opposition:American Civil Liberties Union; California Attorneys
for Criminal Justice; California Public Defenders
Association; Drug Policy Alliance; Friends Committee on
Legislation of California
KEY ISSUE
SHOULD USE OR POSSESSION OF A SPECIFIED SYNTHETIC CANNABINOID OR
SYNTHETIC STIMULANT BE A MISDEMEANOR?
PURPOSE
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The purpose of this bill is to provide that use or possession of
a specified synthetic cannabinoid or stimulant drug is a
misdemeanor.
Existing law lists controlled substances in five "schedules" -
intended to list drugs in decreasing order of harm and
increasing medical utility or safety - and provides penalties
for possession of and commerce in controlled substances.
(Health & Saf. Code �� 11350-11401.)
Existing law lists cathinone as a Schedule II controlled
substance stimulant and provides that simple possession of
cathinone is a misdemeanor, punishable by a jail term of up to
six month, a fine of up to $1,000, or both. (Health & Saf. Code
�� 11055, subd. (d)(8) and 11377, subd. (b)(3).)
Existing law provides that possession for sale of khat or
cathinone is a felony punishable by 16 months, 2 years, or 3
years in state prison. (Health & Saf. Code � 11378.)
Existing law provides that transportation, sale, or furnishing
of khat or cathinone is a felony punishable by 2, 3, or 4 years
in state prison and a fine of up to $10,000. (Health & Saf.
Code � 11379.)
Existing law provides that any person who possesses for
sale, sells or furnishes any synthetic cannabinoid compound
shall be punished by imprisonment in the county jail for up
to six months, a fine of up to $1,000, or both. (Health &
Saf. Code � 11357, subd. (a.)
Existing law provides that any person who sells, dispenses,
distributes, or gives the stimulant substances
naphthylpyrovalerone or cathinone, or specified variations of
these drugs, or who offers to do such acts, is guilty of a
misdemeanor, punishable by a jail term of up to six months, a
fine of up to $1,000, or both. (Health & Saf. Code � 11375.5.)
Existing law provides that "no person shall use, or be under the
influence of, a specified controlled substance. Violation of
this provision is a misdemeanor. (Health & Saf. Code � 11550.)
Penalties and special provisions for being under the influence
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of a controlled substance are the following:
First time conviction: Jail term of from 90 days to one
year. Probation may last up to five years. The court must
include a 90-day jail term as a condition of probation;
Third conviction within seven years of the prior
convictions: If the defendant refuses to complete a
licensed drug treatment program, the court must impose a
term of at least 180 days in jail unless there are no
reasonably available licensed programs;
The court may allow a defendant convicted for a second
time to complete a licensed drug treatment program in lieu
of all or part of the mandatory jail term; and,
Counties are encouraged to augment applications for
federal and state drug treatment money to treat persons
convicted of this offense. (Health & Saf. Code � 11550,
subds. (a)-(c.)
Existing decisional law holds that within the context of Health
and Safety Code Section 11550, "use" of a controlled substance
means current use, or use immediately prior to arrest. (Bosco
v. Justice Court (1978) 77 Cal.App.3d 179, 191; People v.
Velasquez (1976) 54 Cal.App.3d 695.)
Existing Law - Proposition 36 (Nov. 2000 election), the
Substance Abuse 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.)
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;
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and, (Health and Saf. Code � 11550.); and,
� 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.)
This bill provides that a person who "uses or possesses" a
specified synthetic cannabinoid or specified synthetic stimulant
is guilty of a misdemeanor.
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
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
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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
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.
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In a status report to the Court dated February 18, 2014, the
state reported that as of February 12, 2014, California's 33
prisons were at 144.3 percent capacity, with 117,686 inmates.
8,768 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
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:
Although current law prohibits the sale and possession
for sale of synthetic marijuana and bath salts, there
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is no such prohibition against use and possession.
Not only is this inconsistent with the rest of the law
relating to controlled substances, but these drugs are
highly dangerous. Both synthetic marijuana and bath
salts have been associated with overdose deaths; they
have also been associated with aggressive behavior,
with one of the more notorious incidents involving a
person under the influence of bath salts who literally
ate the face off of his victim. This last incident
has caused many observers to characterize these
substances as pharmacological assault weapons.
According to the American Medical Association, the
popularity of synthetic drugs has grown recently,
particularly among teens, who may not be aware of the
drugs' potential danger. Their innocuous-sounding
names, such as "Ivory Wave," "Vanilla Sky," and
"Pineapple Express" contribute to the misperception of
these drugs. They are poisonous substances that can
and have resulted in death. SB 1283 protects our
communities and takes synthetics drugs off the streets
by providing penalties for the personal possession of
these dangerous substances.
2. Background - Synthetic Cannabinoids
The European Monitoring Centre for Drugs and Drug Addiction
(EMCDDA) is a European Union agency. The EMCDDA website states
that it "exists to provide the EU ? with a factual overview of
European drug problems and a solid evidence base to support the
drugs debate."
The EMCDDA website includes the following information about
synthetic cannabinoids:
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Synthetic cannabinoids ?. bind to the same cannabinoid
receptors in the brain [as THC] ? More correctly
designated as cannabinoid receptor agonists, they were
developed over the past 40 years as therapeutic
agents, often for ? pain. However, it proved
difficult to separate the desired properties from
unwanted psychoactive effects. Although often
referred to simply as synthetic cannabinoids, many of
the substances are not structurally related to the
so-called 'classical' cannabinoids, i.e. compounds,
like THC?
The synthetic cannabinoids fall into seven major
structural groups ?. Identification and quantitative
analysis is limited by the availability of pure
reference samples. No field tests ? will detect the
majority of synthetic cannabinoids. [F]orensic
analysis of blood samples for the recent intake
detection of synthetic cannabinoids [is] available in
some laboratories. [D]etection of metabolites in urine
samples is not yet fully developed.
[L]ittle is known about the detailed pharmacology and
toxicology of the synthetic cannabinoids and few
formal human studies have been published. It is
possible that, apart from high potency, some
cannabinoids could have? long half-lives potentially
leading to a prolonged psychoactive effect. ? [T]here
could be considerable ? batch variability? in terms of
substances present and ?quantity. Thus, there is a
higher potential for overdose than with cannabis.
(Italics added.)<1>
3. Difficulties Regulating or Banning Synthetic Cannabinoids
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<1>
http://www.emcdda.europa.eu/publications/drug-profiles/synthetic-
cannabinoids.
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Cannabinoids are essentially drugs that bind to certain
receptors in the brain - the same receptors to which THC and
other drugs obtained from cannabis bind. Synthetic cannabinoids
are often inaccurately described as "synthetic marijuana" or
"synthetic THC" - the most prominent psychoactive chemical in
marijuana. However, as the preceding comment illustrates,
synthetic cannabinoids are often not closely related chemically
or similar to THC.
If any synthetic cannabinoid can be shown to be chemically
equivalent to THC, or the effects of the drug equivalent to THC,
conduct involving the synthetic cannabinoid would be subject to
prosecution because the drug would be considered an analog of
THC. An analog is a drug that is substantially similar in
chemical structure or effects to a scheduled drug. Under
California law, an analog of a controlled substance is
essentially treated as a controlled substance. Because many
synthetic cannabinoids may not be similar in properties or
chemical structure to THC, the ability of prosecutors to use the
analog statute in synthetic cannabinoid cases may be limited.
This is particularly likely if the defendant retains an expert
who can explain the chemistry and effects of cannabinoids.
The diverse structures and effects on a user of synthetic
cannabinoids also make it difficult to draft a statute including
the drugs in the controlled substance schedules as generic
groups or classes of drugs, unlike opiates for example.<2> It
could be necessary to name each class or form of similar
synthetic cannabinoids, and perhaps numerous individual
chemicals. There are dozens, if not hundreds, of synthetic
cannabinoids and more could be developed.
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<2> Opiates - derivatives of the opium poppy- are both
generically scheduled as opium and specifically scheduled in the
form of heroin, morphine and related drugs.
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A legislative effort to ban synthetic cannabinoids could be
difficult to achieve. The National Conference of State
Legislatures (NCSL) has posted a list<3> of the eight groups of
synthetic cannabinoids that are variously prohibited in numerous
state codes. Consistent with the NCSL list, it appears that as
of 2013 the federal controlled substances schedules include 26
individual synthetic cannabinoids or synthetic stimulants and
eight types of synthetic cannabinoids.<4> This was done through
congressional action and emergency scheduling by the federal
Drug Enforcement Administration (DEA).<5> Nevertheless, in
February of 2013, the American Association for Clinical
Chemistry Website posted diagrams of the chemical composition of
synthetic cannabinoids in products tested in September 2012.<6>
Of the 16 detected compounds or chemicals, only five were
included in the federal drug schedules.
A March 3, 2014 posting on the Website-electronic journal EmDocs
- Emergency Medicine Education - noted that new forms of
synthetic cannabinoids were being developed to avoid detection
in drug tests and greater intoxication.<7> Each new form has
its own "distinctive binding affinity" to cannabinoid receptors.
"First generation synthetic cannabinoids are believed to be
more benign than the newer generation cannabinoids, which are
more likely to cause cardiotoxicity and neurotoxicity." It
appears that efforts to stay ahead of synthetic cannabinoid
prohibitions will result in more problematic substances.
WILL NEW FORMS OF SYNTHETIC CANNABINOIDS BE DEVELOPED, THUS
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<3>
http://www.ncsl.org/research/civil-and-criminal-justice/synthetic
-cannabinoid-chemical-classes.aspx
<4>
http://www.whitehouse.gov/ondcp/ondcp-fact-sheets/synthetic-drugs
-k2-spice-bath-salts
<5> Some reference materials do not carefully distinguish
between synthetic cannabinoids and synthetic stimulants.
<6>
http://www.aacc.org/publications/cln/2013/february/Pages/Cannabin
oids-Fig1.aspx#
<7> http://www.emdocs.net/synthetic-cannabinoids/
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LIMITING THE APPLICATION OF THIS BILL?
4. Background on the Synthetic Stimulant Naphthylpyrovalerone
from the United Kingdom Advisory Council on the Misuse of
Drugs
The United Kingdom Advisory Council on the Misuse of Drugs
(ACMD) is an agency of the UK Home Office that advises policy
makers on drug issues. In the past few years, the ACMD has
reported on the synthetic stimulants covered by this bill.
The ACMD has stated that naphthylpyrovalerone (or naphyrone)
"acts as a triple monoamine reuptake inhibitor, producing
psychostimulant effects." The report<8> noted that naphyrone
has been described as being stronger than cocaine or
amphetamines. However, a prominent product branded as NRG-1 may
not necessarily contain naphyrone or naphthylpyrovalerone, but
may contain "naphyrone or any number of other cathinones ?
caffeine or other ? constituents."
Triple reuptake inhibitors affect the neurotranmitters dopamine,
serotonin and norepinephrine. Cocaine is a triple reuptake
inhibitor. (Methamphetamine affects dopamine neurotransmitters
and MDMA (ecstasy) affects the serotonin system.) Naphyrone
also appears to cause direct release of neurotransmitters. In
sum, naphyrone appears to be a highly potent stimulant, perhaps
many times stronger than cocaine.
5. Analog Prosecution Issues Concerning Naphthylpyrovalerone
The ACMD report also stated: "Naphyrone has a close structural
resemblance to the cathinones such as mephedorne and
methylenedioxy-pyrovalerone (MDVP). Naphyrone, however, remains
outside the generic definition in which a number of cathinones ?
were controlled [in 2010]." In particular, the ACMD report
stated: "Naphyrone is a naphthyl analogue of the cathinones ?"
The European drug monitoring agency reports that synthetic
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<8> UK Advisory Council on Misuse of Drugs (ACMD) Consideration
of naphthylpyrovalerone analogues and related compounds.
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cathinones are controlled as a class of drug in the UK.<9>
California controlled substance law includes five schedules.
The schedules list specified chemicals and often include the
salts and other variants of the scheduled drug. It would appear
that many of the listed controlled substances could be said to
include generic definitions.
California controlled substance law also allows prosecution of a
person for possession of and commerce in a drug that is an
"analog" of a Schedule I or II drug. (Health & Saf. Code ��
11400-11401.) The purpose of the analog law is to prevent
"street chemists" from circumventing drug laws by synthesizing
drugs "which have, are represented to have, or are intended to
have effects on the central nervous system which are
substantially similar to, or greater than" scheduled drugs.
(Health & Saf. Code � 11400.)
An analog is defined as:
(1) A substance the chemical structure of which is
substantially similar to the chemical structure of a
[Schedule I or II controlled substance].
(2) A substance which has, is represented as having,
or is intended to have a stimulant, depressant, or
hallucinogenic effect on the central nervous system
that is substantially similar to, or greater than, the
stimulant, depressant, or hallucinogenic effect on the
central nervous system of a [Schedule I or II
controlled substance] (Health & Saf. Code � 11401.)
Appellate court decisions have held that the analog statute has
a broad application. Clearly, an analog need not fit within the
definition of a scheduled drug. In People v. Becker (2010) 183
Cal. App. 4th 1151, the appellate court upheld the defendant's
conviction for possession of MDMA as an analog of
methamphetamine, a Schedule II controlled substance. The court
found that there was substantial evidence that MDMA produced
effects that were "substantially similar" to methamphetamine.
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<9>
http://www.emcdda.europa.eu/publications/drug-profiles/synthetic-
cathinones
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The major testimony to support the prosecution's case was that
of the police investigator who stated: "It's initially much
like cocaine. Its methyldioxy methamphetamine that is what MDMA
is. So from the methamphetamine, logically it's a stimulant, so
you would get a dramatically raised heartbeat . . . ." The
investigator noted that MDMA also has hallucinogenic effects.
(Id., at p. 1154-1155.)
The Becker case supports a conclusion that the California analog
law is quite broad. Cathinone is a Schedule II stimulant.
(Health & Saf. Code � 11055, subd. (d)(8).) If the UK ACMD
report is correct that naphthylpyrovalerone "has a close
structural resemblance to cathinones" and that the drug is a
psychostimulant, naphthylprovalerone may be found to be an
analog of cathinone under California law. Further, as
naphthylpyrovalerone interacts with the same neurotransmitters
as cocaine, and produces similar effects, it could possibly be
said to be an analog of cocaine.
Committee staff is unaware of any case where a district attorney
was unable to prosecute possessors of so-called "bath salts"
under the analog statute. Nor is staff aware of any particular
cases where such a prosecution was upheld. However, discussions
with representatives of district attorneys indicate that the Los
Angeles District Attorney may believe that his or her office can
prosecute bath salt (naphthylpyrovalerone) cases pursuant to the
analog law.
CAN POSSESSION OF SO-CALLED BATH SALTS BE PROSECUTED UNDER THE
CALIFORNIA CONTROLLED SUBSTANCES ANALOG LAW?
6. Additional Analog Issues for Synthetic Cannabinoids and
Stimulants
The DEA has reported significant success in applying the federal
analogue statute to "many" synthetic drugs of all kinds.
However, it is not clear if most synthetic cannabinoids in
current use are included.<10>
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<10> http://www.justice.gov/dea/divisions/hq/2013/hq062613.shtml
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Nevertheless, the National Institutes of Health's PubMed site
included an abstract of an emergency medicine journal article
that stated as to all of the new classes of synthetic drugs:
"Slight alterations of the basic chemical structure of
substances create an entirely new drug no longer regulated by
current laws and an ever-changing landscape of clinical
effects."<11> It also appears that new forms of synthetic drugs
are being constantly developed.
WILL CONTINUING DEVELOPMENT OF NEW CLASSES OF SYNTHETIC DRUGS
IMPEDE ATTEMPTS TO REGULATE AND PROHIBIT DRUGS OF ABUSE?
7. Issues Concerning Drug Treatment in the Courts
Defendants convicted of non-violent drug possession are entitled
to drug treatment on probation without incarceration under the
Substance Abuse and Crime Prevention Act of 2000 (SACPA - Prop.
36 of the Nov. 2000 Gen. Elec.) However, the state has not
funded SACPA since 2008. SACPA resources have been limited
since enactment, as funding was only guaranteed by the
initiative for five years. The original funding level of $120
million for five years appears to have been inadequate to meet
treatment needs of defendants, particularly those with a long
history of drug abuse. Despite the absence of state funding,
counties must provide treatment under SACPA. The lack of
funding has resulted in long waiting lists and relatively
minimal treatment programs. The UCLA studies of SACPA noted
that inadequate treatment and delays greatly limit the
effectiveness of treatment.<12> Assessments of criminal justice
realignment have noted a lack of spending on drug treatment and
other rehabilitation programs in many counties.<13>
The Affordable Care Act (ACA) could provide a funding source for
---------------------------
<11> http://www.ncbi.nlm.nih.gov/pubmed/24275167
<12>http://www.uclaisap.org/Prop36/documents/2009%20Survey%20Resp
onses%20on%20budget%20cuts%20and%20SACPA%20changes.pdf ,
http://www.uclaisap.org/Prop36/documents/2009%20SACPA%20Report%20
Final%2011242009.pdf , pp. 58-92
<13>http://www.law.stanford.edu/sites/default/files/publication/4
43760/doc/slspublic/Lin%20Money%20Final%20Rep ort%20022814.pdf
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defendants in SACPA programs, SACPA probationers who have
medical insurance or who are eligible for MediCal or other
government medical treatment programs have been able to access
treatment with private providers. Defendants who need drug
abuse treatment would qualify for insurance under the ACA and
for treatment under rules requiring that drug treatment and
mental health treatment be provided on an equivalent basis.
However, it is not known whether the ACA will result in
substantially more treatment being available in SACPA and other
court treatment programs.
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Unless adequate treatment capacity and funding are developed and
secured, this bill could simply result in many people -
especially young drug experimenters - having a misdemeanor
criminal record. Drug offenders have difficulty obtaining
employment. While some employers may only be ostensibly
concerned with felony convictions, many firms do independent
research on the background of a prospective employee. Perhaps
the bill should provide that it shall not be effective until
adequate drug treatment capacity and funding exists.
DOES LACK OF FUNDING AND LIMITED TREATMENT CAPACITY FOR THE
SUBSTANCE ABUSE AND CRIME PREVENTION ACT (SACPA - PROP 36, 2000)
MAKE IT UNLIKELY THAT ADEQUATE TREATMENT WOULD BE OFFERED TO
PERSONS CONVICTED OF MISDEMEANOR DRUG POSSESSION UNDER THIS
BILL?
SHOULD IMPLEMENTATION OF THIS BILL BE CONDITIONED ON ADEQUATE
AND CERTAIN FUNDING FOR DRUG TREATMENT IN SACPA AND OTHER
CRIMINAL JUSTICE TREATMENT PROGRAMS?
8. Issues of Controlling or Limiting Drug Use through Criminal
Penalties
Drug Control through Criminal Penalties Generally
This bill continues a decades-long history of expanded criminal
penalties for commerce in and use of drugs for intoxication.
Numerous studies have concluded that criminal penalties have not
substantially limited drug abuse, but prohibition has generated
substantial profits for illicit trade.
President Nixon declared a war on drugs in 1971. 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 in
1986. President 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
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War on Drugs, NPR, April 2, 2007<14>; Health & Saf. Code ��
11054-11058; 11350-11383.7, 11351.5.)
In June 2011, the Global Commission on Drug Policy released a
report, "War on Drugs," examining global drug policy over the
past half-century. The Commission is comprised of current and
former heads of state, public officials, and experts.<15>
The report states:
The global war on drugs has failed, with devastating
consequences for individuals and societies around the
world. Fifty years after the initiation of the UN
Single Convention on Narcotic Drugs, and 40 years
after President Nixon launched the US government's war
on drugs, fundamental reforms in national and global
drug control policies are urgently needed.
Vast expenditures on criminalization and repressive
measures directed at producers, traffickers and
consumers of illegal drugs have clearly failed to
effectively curtail supply or consumption. Apparent
victories in eliminating one source or trafficking
organization are negated almost instantly by the
emergence of other sources and traffickers.
Repressive efforts directed at consumers impede public
health measures to reduce HIV/AIDS, overdose
fatalities and other harmful consequences of drug use.
Government expenditures on futile supply reduction
strategies and incarceration displace more
cost-effective and evidence-based investments in
demand and harm reduction." (Global Commission on
Drug Policy, War on Drugs (June 2011), italics added.)
WOULD THE DRUG POSSESSION AND USE PENALTIES IN THIS BILL
REDUCE THE USE OF SYNTHETIC CANNABINOIDS AND SYNTHETIC
STIMULANTS?
Portugal: Policy of Decriminalization of Drug Possession, Civil
Administrative Hearings, Treatment and Fines.
---------------------------
<14>
http://www.npr.org/templates/story/story.php?storyId=9252490
<15> http://www.globalcommissionondrugs.org/Commission>.)
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In the last decade, Portugal has received substantial notice
because it has decriminalized drug possession. Drugs are not
legal in Portugal, and those involved in drug commerce can be
imprisoned. However, a person in possession of no more than a
10-day supply can be fined and go "before an administrative
board called the Commission for the Dissuasion of Drug Addicts."
The panels are composed of three people, typically a lawyer or
judge, a physician and a psychologist or social worker. An
October 17, 2011 article in the New Yorker magazine examined the
Portuguese system. "The commissioners have three options:
recommend treatment, levy a small fine or do nothing.
Counseling is the most common approach? In most respects, the
law seems to have worked: serious drug use is down
significantly, particularly among young people; the burden on
the criminal justice system has eased; the number of people
seeking treatment has grown; and the rates of drug-related
deaths and cases of infectious diseases have fallen."<16>
A 2009 article in the Economist magazine noted that before
decriminalization Portugal had a serious drug problem. There
were fears that decriminalization would make Portugal a magnet
for drug tourism. Drug tourism never developed and drug use and
commerce rates fell to a point where drug use in Portugal was
among the lowest in Europe. Perhaps most notable, drug
treatment rate rose as drug use fell.<17> Some concerns have
been raised that the law gives addicts little genuine incentive
to quit. However, there are many examples of addicts who are
able to lead a productive life under the law. "Political
opposition has been tepid and there has never been a concerted
repeal effort." <18>
DOES THE PORTUGUESE EXPERIENCE SHOW THAT NON-PENAL MEASURES,
SUCH AS HEARNINGS BY ADMINISTRATIVE BOARDS THAT CAN DIRECT A
PERSON TO TREATMENT OR LEVY A FINE, MAY BE MORE EFFECTIVE THAN
CRIMINAL PENALTIES IN REDUCING DRUG USE AND INCREASING RATES OF
TREATMENT?
***************
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<16> http://archives.newyorker.com/?i=2011-10-17#
<17> http://www.economist.com/node/14309861
<18> http://archives.newyorker.com/?i=2011-10-17#folio=036
SB 1283 (Galgiani)
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