BILL ANALYSIS
AB 125
Page 1
Date of Hearing: March 15, 2005
Counsel: Kathleen Ragan
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Mark Leno, Chair
AB 125 (Dymally) - As Introduced: January 13, 1005
SUMMARY : Provides identical punishments for violations of laws
related to cocaine powder and crack cocaine. Specifically, this
bill :
1)Reduces the punishment of possession or purchase for sale of
cocaine base (crack cocaine) from imprisonment in the state
prison for three, four, or five years to imprisonment in the
state prison for two, three or four years.
2)Declares legislative findings as follows:
a) Cocaine hydrochloride (powder cocaine) and cocaine base
(crack cocaine) are two forms of the same drugs; the effect
on the human body of which are so similar that to mete out
unequal punishment for the same crime (e.g., possession for
sale of a particular form of cocaine) is wholly and cruelly
unjust.
b) The current statutory sentencing disparity between
cocaine hydrochloride and cocaine base has a
disproportionate impact on California's African-Americans,
who comprise 6.4% of the state's population yet account for
two-thirds of those convicted of possession of cocaine base
for sale.
c) According to conservative estimates provided by the
Attorney General, more than 2,100 California residents were
convicted of possession of cocaine base for sale in each of
the years of 2000 and 2001. The cost to California
taxpayers to incarcerate 2,100 persons for an additional
year at $30,929 per individual is approximately $65
million.
d) States legislative intent to provide that for the
purposes of determining appropriate penalties for crimes
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relating to cocaine hydrochloride and cocaine base, such as
the crime of possession, possession for sale, or
transportation for sale, cocaine hydrochloride and cocaine
base shall be treated in an identical manner.
3)Makes conforming changes to the Health and Safety Code (HSC)
and Penal Code Sections related to crack cocaine and powder
cocaine.
4)Changes from 14.25 grams or more of cocaine base to 28.5 grams
or more of either cocaine base or cocaine powder as the amount
of cocaine which subjects a boat, airplane or vehicle to
forfeiture.
5)Equalizes the treatment transporting or importing for sale, or
sale of, cocaine powder and cocaine base with respect to the
granting of probation.
EXISTING LAW:
1)States that the punishment for possessing cocaine base for
sale is imprisonment in the state prison for three, four or
five years. (HSC Section 11351.5.)
2)Provides that the punishment for possessing for sale of powder
cocaine is imprisonment in the state prison for two, three, or
four years. (HSC Section 11351.)
3)Provides that the punishment for selling cocaine, cocaine
base, and heroin is three, four, or five years in state
prison. (HSC Section 11352.)
4)States that probation shall not generally be granted to
persons convicted of possessing for sale, or selling, 14.25
grams or more of cocaine base or 57 grams or more of a
substance containing at least five grams of cocaine base.
[Penal Code Section 1203.073(b)(5).]
5)Provides that any person 18 years of age or over who solicits
a minor to violate specified laws related to narcotic drugs,
or hires or uses a minor to unlawfully transport or sell such
drugs, shall be punished by imprisonment in the state prison
for three, six or nine years. [Penal Code Section 11353.)
6)Provides for various sentencing enhancements for adults who
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violate specified controlled substances laws near or in any
school, church, playground, or other place when minors are
using the facility. [Penal Code Sections 11353.1, and
11353.6, 11353.7.]
FISCAL EFFECT : Unknown
COMMENTS :
1)Background : According to background information provided by
the author, the arrest and conviction rates for crack cocaine
offenses have "a grossly disproportionate impact on
African-Americans" (Criminal Justice Statistics Center, Office
of the Attorney General, data as of February 2005). "Although
African-Americans are just over 6% of the state's total
population, they have accounted for almost three-quarters of
those arrested and roughly two-thirds of those convicted. In
2003 alone, 75% of those arrested and 71% of those convicted
(of crack cocaine offenses) were African-American.
"Whatever their intended goal, the reality is that disparate
sentencing guidelines for similar drugs result in a pattern of
institutionalized racism, with longer prison sentences given
to African-Americans who are more likely to be addicted to and
sell cocaine base (which is smoked), and with shorter
sentences meted out to Hispanics and White users and sellers
of powder cocaine (which is injected or snorted in an
intra-nasal manner. The sentencing for possession of powder
cocaine for sale is two, three, or four years. The sentencing
for the same crime that involves cocaine base is three, four,
or five years.
"Further, statutes limit judges' discretion to grant probation
or to delay imposition of sentence for offenders who possess
for sale 28.5 grams of cocaine, but sets the limits at 14.25
grams for cocaine base. Cocaine base is a product derived
when cocaine is processed with an alkali, typically common
baking soda. Gram-for-gram there is less drug in cocaine base
than there is in powder cocaine being sold on the black
market.
" 'The appeal of crack for the very poor is that they can
experience cocaine's high for less money. The high is
short-lived because there is so little cocaine in the product.
When powder cocaine is injected, however, it produces a fast,
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intense high similar to crack'." (Morgan, JR and Zimmer, L.
"The Social Pharmacology of Smokable Cocaine: Not All It's
Cracked Up To Be"; and "Crack in America: Demon Drugs and
Social Injustice". University of California Press, 1997).
The Journal of the American Medical Association states in its
article, "Crack Cocaine and Cocaine Hydrochloride: Are the
Differences Myth or Reality?", "The physiological and
psychocactive effects of cocaine are similar regardless of
whether it is in the form of cocaine hydrochloride or crack
cocaine (cocaine base). However, evidence exists showing a
greater abuse liability, greater propensity for dependence,
and more severe consequences when cocaine is smoked (cocaine
base) or injected intravenously (cocaine hydrochloride)
compared with intranasal use of cocaine hydrochloride. The
crucial variables appear to be the immediacy, duration, and
magnitude of cocaine's effect, as well as the frequency and
amount of cocaine use rather than the form of the cocaine."
2)Rational Basis for Different Punishment for Same Drug ? As
stated by the Journal of American Medicine, if the
physiological and psychocactive effects of cocaine are similar
regardless of whether it is in the form of cocaine
hydrochloride or crack cocaine (cocaine base), is there a
rational basis for punishing crimes related to cocaine base
more severely than those related to cocaine hydrochloride?
3)Demographics of the State Prison Population : According to
the California Department of Corrections website, the overall
prison population is 163,939, which represents 1.3% more
inmates than last year. 29% of the inmates are White, 29% of
the inmates are African-American, 37% are Hispanic, and 6% are
listed as "other."
21% of the inmates are in prison for drug offenses, whereas 51%
are in prison for crimes against the person and 21% for
property crimes. 93% of the inmates are male, and 7% are
female. 12% are parole violators. 33% of the people on
parole committed drug offenses.
For calendar year 2003, CDC reports 17,410 persons incarcerated
for various controlled substance offenses. In 2003, the
Department of Justice (DOJ) reports that 1,786.2 pounds of
cocaine were seized, valued at $25,453,350.
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The DOJ website also reports that in 2003 there were 140,744
arrests for felony drug offenses; narcotics arrests (which
include heroin and cocaine) accounted for 35.8% or 50,440
arrests. From 1998 to 2003, there was a 27.9% decrease in the
rate of total narcotic arrests. In 2003, the adult arrest
rate for narcotic offenses was nearly six times higher than
the juvenile arrest rate.
DOJ also reports that of the arrests for narcotics offenses,
22,861 of the arrestees (41.2%) were African-American and
10,058 (19%) were White. The website does not provide a
further breakdown as to which narcotic drugs were involved in
the offenses.
4)Discriminatory Impact of Current Law : According to the Drug
Policy Alliance, "California is one of only 13 states that
make a distinction in sentencing between powder cocaine and
cocaine base ("crack"), which results in a pattern of
institutionalized racism." According to Progressive
Christians Uniting, "In 2003, 70 men and women of Caucasian
descent were convicted for possessing rock cocaine in
California. In that same year, 1,125 African Americans were
convicted for the same crime."
According to the California State Conference of the National
Association for the Advancement of Colored People (NAACP),
"the primary difference between these two drugs is the pattern
of institutionalized racism inherent in the disparate
sentencing guidelines that impose longer prison sentences to
persons charged with offenses involving the possession for
sale of crack cocaine, who are 66.5% African-American and
poor, and those imposed on persons involved with powder
cocaine, who tend to be in the majority white and upper
income."
In several reports to Congress, the United States Sentencing
Commission has supported eliminating the sentencing disparity
between powder and crack cocaine on the federal level. In
1997, the Commission's report stated, "If the impact of the
law is discriminatory, the problem is no less real regardless
of the intent. This problem is particularly acute because the
disparate impact arises from a penalty structure for two
different forms of the same substance. It is a little like
punishing vehicular homicide while under the influence of
alcohol more severely if the defendant had become intoxicated
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by ingesting cheap wine rather than scotch whiskey. That
suggestion is absurd on its face and ought to be no less so
when the abused substance is cocaine rather than alcohol."
The United States Sentencing Commission report further stated,
"Bad laws weaken respect of good laws. Consequences follow.
Sooner or later, all those people who feel alienated as a
result of receiving what they believe to be unfair treatment
and unjust sentences will be released from jail. Does this
country really expect them to become productive members of
society or might we anticipate some retributive behavior?"
5)Argument in Support :
a) The California Caucus of Black Republicans states, "This
bill is non-partisan, insofar as it would eliminate a
seriously flawed disparity between the standards for
sentencing offenders who had been charged with possession
and sale of cocaine base (rock) as opposed to the
sentencing of those who had been charged with possession
and sale in equal amounts of either powder cocaine or
heroin. The current California law . . . adds an
additional year for the exact same crime in any of the
cases which involve cocaine in base form rather than powder
form. We believe this peculiarity needs to be corrected
for the sake of good government alone for starters.
"The primary distinctions between the two substance forms are
method of intake and cost. [C]ocaine base is cheaper to
buy. . . . Cocaine is cocaine and its use should be
treated or punished in the same way for purposes of
convictions for all perpetrators.
"Beyond the not so trivial issue of equality for all people,
there is also a budget factor arising out of the increased
costs to the public that is a by-product of the present
law. Cost savings to the state, in the first year after
restoring parity in sentencing, would be nearly $50 million
dollars, without compromising public safety and without
lessening the State's ability to severely punish drug
dealing.
"Continuing the present disparity in sentencing would
maintain a glaring though correctable bias in the criminal
justice system, by giving higher-income offenders a
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different kind of justice than that which is offered up to
the minority communities with reference to the same drug.
We believe all drug use is bad.
"It is also evident that the current sentence disparity is
not otherwise economically beneficial to California as it
continues to undermine the effectiveness of overworked law
enforcement personnel, the courts, and the criminal justice
system.
b) Bethany Baptist Church's Pastor, Dr. L.P. Lewis, Ph.D.,
states, "Our community cannot grow when our young men and
women are on drugs, in prison, or in the cemetery. As long
as so many young black men are in prison, many for crack
distribution, they are merely being warehoused for extended
periods of time, and any potential contribution they can
make to their community is delayed or lost forever. Given
the fact that we are incarcerating more African American
men for longer periods of time, we risk the possibility of
writing off an entire generation of young men from having
the opportunity to lead productive lives in our society.
"I strongly support this bill. The current differentiation
between crack and powder cocaine hinders our community from
improving its subordinated social and economic position and
from improving the dire economic conditions which often
lead to crack dealing.
"The apparent inequality in the criminal justice system does
far more harm than done to the individual defendant. It
also undermines public confidence in the fairness of our
system of justice and serves as a stimulant to racial
prejudice."
c) Progressive Christians Uniting states, "The current
disparity exposes the unacceptable racial and class bias in
the criminal justice system. There is simply no way to
avoid this conclusion. Moreover, the continuing sentencing
disparity is economically harmful to California and
undermines the overall effectiveness of law enforcement and
the criminal justice system."
d) The Justice Policy Institute states, "Echoing the
sentiments of President Bush, who said 'one of the main
sources our national unity is our belief in equal justice,
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and we need to make sure Americans of all races and
backgrounds have confidence in the system that provides
justice', we believe the current law undermines confidence
in the justice system. Under current law, African
Americans are 16 times more likely to be convicted when
compared to whites. . . . Research has established no
difference in physiological or psychoactive effects between
cocaine base and powder cocaine. They are only different
in their method of consumption. Therefore, the disparity
in crack and powder sentencing significantly undermines the
fairness of the criminal justice system in California.
This bill is a 'smart on crime' bill that will help restore
a sense of fairness in sentencing and extend access to
treatment for chemically addicted people. This will reduce
recidivism, corrections costs and help increase public
safety."
e) The National Council of La Raza (NCLR) states,
"According to statistics from the State Attorney General's
Office, the cost to California taxpayers to incarcerate
2,100 persons for an additional year at $30,929 per
individual is approximately $65 million. By creating
parity in sentencing, California would save millions of
dollars without compromising public safety or lessening the
ability to punish drug dealing."
NCLR further states, "This bill is about equality and
fairness and California is uniquely positioned to be at the
forefront of this issue."
f) Center Point, Inc . (which operates drug treatment
programs) states, "This bill would allow judges to use
alternatives to incarceration instead of relying heavily on
more expensive prison terms - the same discretion allowed
for the same offense involving powder cocaine."
g) The California Attorneys for Criminal Justice state,
"The present penalties for possessing cocaine powder for
sale are more than sufficient to punish those who possess
for sale any kind or type of cocaine. This bill will help
eliminate unfair discrimination in the present law."
6)Argument in Opposition :
a) The California Peace Officers' Association (CPOA)
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states, "The reduction in penalties for trafficking in
dangerous drugs is unwise public policy. As a time when
illegal drug trafficking has a corrosive impact on
communities reduction of trafficking penalties is
counterproductive to the production of neighborhoods.
Instead, CPOA proposes that the penalties for trafficking
in powdered cocaine be raised to the level of the penalties
for trafficking in crack cocaine."
b) The California Police Chiefs Association states, "Our
association . . . is mindful of the differences in
penalties between crack cocaine and powdered cocaine, and
believes that the legislative solution is to increase the
penalties for trafficking in powdered cocaine, not reducing
the penalties for crack cocaine trafficking."
c) The California Narcotics Officers' Association (CNOA)
states that they agree that the penalty differentials
between cocaine base and powdered cocaine are irrational,
but "CNOA believes that the solution is to raise the
penalties for possession for sale, purchase for sale, or
transportation of powdered cocaine, rather than lowering
the penalties for drug trafficking."
7)Prior Legislation : AB 2274 (Dymally), of the 2003-4
Legislative Session, proposed to reduce the penalties for
controlled substance violations involving cocaine base. AB
2274 was never heard on the Assembly Floor.
AB 1313 (Pacheco), of the 1999-2000 Legislative Session,
proposed to expand crack cocaine enhancements for using a
minor to sell cocaine base to include the same conduct for
methamphetamine, cocaine, and heroin. AB 1313 was held in the
Assembly Appropriations Committee's Suspense File.
SB 68 (Murray), of the 1999-2000 Legislative Session, proposed
to increase the penalties for controlled substance violations
involving methamphetamine and powder cocaine. SB 68 failed
passage in the Senate Public Safety Committee.
AB 2672 (Pacheco/Murray), of the 1997-98 Legislative Session,
proposed to increase the penalties for controlled substance
violations involving methamphetamine. AB 2672 was held in the
Assembly Appropriations Committee's Suspense File.
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REGISTERED SUPPORT / OPPOSITION :
Support
American Civil Liberties Union
Bethany Baptist Church
California Attorneys for Criminal Justice
California Caucus of Black Republicans
California State Conference of the National Association
for the Advancement of Colored People
Capital Alliance
Center Point, Inc.
Coalition for Effective Public Safety
Dare U To Care Treatment Program
Drug Policy Alliance Network
Ella Baker Center for Human Rights
National Council of La Raza
Friends Committee on Legislation
Justice Policy Institute
Progressive Christians Uniting
Walden House
243 Private Citizens
Opposition
California District Attorneys Association
California Narcotics Officers Association
California Peace Officers Association
California Police Chiefs Association
Sheriff, San Bernardino County
Analysis Prepared by : Kathleen Ragan / PUB. S. / (916)
319-3744