BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Gloria Romero, Chair A
2007-2008 Regular Session B
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AB 1141 (Anderson) 1
As Amended January 7, 2008
Hearing date: June 24, 2008
Health and Safety Code
JM:br
CONTROLLED SUBSTANCES
KHAT, CATHINONE AND CATHINE
HISTORY
Source: San Diego District Attorney
Prior Legislation: None directly on point
Support: United States Postal Inspector; Federal Bureau of
Investigation; San Diego County Sheriff; California
Narcotic Officers' Association; California District
Attorneys Association; Riverside Sheriffs' Association;
Association for Los Angeles Deputy Sheriffs;
Sheriff-Coroner of San Bernardino County; Los Angeles
County District Attorney
Opposition:None known
Assembly Floor Vote: Ayes 76 - Noes 0
KEY ISSUE
SHOULD KHAT (ANY PART OF THE PLANT CATHA EDULIS) AND CATHINONE
BE PLACED IN SCHEDULE II OF THE CONTROLLED SUBSTANCE SCHEDULES?
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SHOULD CATHINE BE PLACED IN SCHEDULE IV OF THE CONTROLLED
SUBSTANCE SCHEDULES?
(CONTINUED)
SHOULD POSSESSION OF KHAT, CATHINONE OR CATHINE BE A MISDEMEANOR?
WITHOUT THE NECESSITY OF PROVING THAT THESE SUBSTANCES ARE ANALOGS
OF AMPHETAMINE, A SCHEDULED DRUG, SHOULD POSSESSION FOR SALE OF
KHAT, CATHINE OR CATHINONE BE A FELONY, WITH A PRISON TERM OF 16
MONTHS, TWO YEARS OR THREE YEARS?
SHOULD SALE OF KHAT, CATHINE OR CATHINONE BE A FELONY, WITH A PRISON
TERM OF TWO YEARS, THREE YEARS OR FOUR YEARS?
PURPOSE
The purposes of this bill are to: 1) place khat (parts of the
plant Catha Edulis) and cathinone in Schedule II of the
controlled substances schedules, thereby making commerce in each
substance a felony; 2) place cathine in Schedule IV, thereby
making commerce in this substance a felony; 3) provide that
possession of khat, cathine or cathinone is a misdemeanor; and
4) allow defendants to be directly prosecuted for crimes
involving these substances, rather than requiring proof that the
substances are analogs of amphetamine in order for prosecutor's
to obtain convictions.
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, and are deemed by law to have no accepted medical
use. (Health and Saf. Code 11054-11058.)
Existing federal law (21 U.S.C. 812) includes the following
scheduling criteria :
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Schedule I: The drug or other substance has a high
potential for abuse. The drug or other substance has
no currently accepted medical use in treatment in the
United States. There is a lack of accepted safety for
use of the drug or other substance under medical
supervision.
Schedule II: The drug or other substance has a
high potential for abuse. The drug or other substance
has a currently accepted medical use in treatment in
the United States or a currently accepted medical use
with severe restrictions. Abuse of the drug or other
substances may lead to severe psychological or
physical dependence.
Schedule III: The drug or other substance has a
potential for abuse less than the drugs or other
substances in Schedules I and II. The drug or other
substance has a currently accepted medical use in
treatment in the United States. Abuse of the drug or
other substance may lead to moderate or low physical
dependence or high psychological dependence.
Schedule IV. The drug or other substance has a low
potential for abuse relative to the drugs or other
substances in Schedule III. The drug or other
substance has a currently accepted medical use in
treatment in the United States. Abuse of the drug or
other substance may lead to limited physical
dependence or psychological dependence relative to the
drugs or other substances in Schedule III.
Schedule V: The drug or other substance has a low
potential for abuse relative to the drugs or other
substances in Schedule IV. The drug or other
substance has a currently accepted medical use in
treatment in the United States. Abuse of the drug or
other substance may lead to limited physical
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dependence or psychological dependence relative to the
drugs or other substances in Schedule IV.
Existing California law does not include a list of criteria
for scheduling controlled substances. California law
schedules are generally consistent with federal schedules.
(Health & Saf. Code 11054-11058.)
Existing law provides that an analog of a scheduled controlled
substance shall be treated the same as the scheduled substance
for purposes of prosecution and punishment other than being
under the influence of the analog. An analog is defined as a
substance with similar chemical properties or effects to
another substance. (Health and Saf. Code 11400-11401.)
Existing law provides that possession of a Schedule II or IV
stimulant is an alternate felony-misdemeanor, punishable by a
county jail term of up to one year, a fine of up to $1,000, or
both, or by a prison term of 16 months, 2 years or 3 years and a
fine of up to $10,000. (Health & Saf. Code 11377.)
Existing law provides that possession for sale of any Schedule
II or IV stimulant is a felony, with a prison term of 16 months,
2 years or 3 years and a fine of up to $10,000. (Health & Saf.
Code 11378, subd. (a).)
Existing law provides that sale, furnishing, et cetera, any
Schedule II or IV stimulant is a felony, with a prison term of
2, 3 or 4 years and a fine of up to $10,000.
Existing federal law and regulations classify cathinone as a
Schedule I stimulant unless specifically excepted or unless
listed in another schedule, any material, compound, mixture, or
preparation which contains any quantity of the following
substances having a stimulant effect on the central nervous
system, including its salts, isomers, and salts of isomers. (21
U.S.C. 812; 21 Code of Fed. Regs. 1308.11 (f)(3).)
Existing federal law and regulations classify cathine as a
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Schedule IV stimulant unless specifically excepted or unless
listed in another schedule, any material, compound, mixture,
or preparation which contains any quantity of the following
substances having a stimulant effect on the central nervous
system, including its salts, isomers and salts of isomers.
(21 U.S.C. 812; 21 Code of Fed. Regs. 1308.14 (e)(1).)
Existing law provides that sale of ephedrine to minors is a
misdemeanor. (Health & Saf. Code 110423.2.)
Existing law provides that any sale of any product containing
ephedrine must include a warning as to adverse effects of the
drug. (Health & Saf. Code 110423.)
This bill provides that any material, compound, mixture, or
preparation which contains any quantity of khat, which includes
all parts of the plant classified botanically as Catha Edulis,
whether growing or not, the seeds thereof, any extract from any
part of the plant, and every compound, manufacture, salt,
derivative, mixture, or preparation of the plant, its seeds, or
extracts having a stimulant effect on the central nervous
system is a controlled substance listed in Schedule II.
This bill states that any material, compound, mixture, or
preparation which contains any quantity of cathinone having a
stimulant effect on the central nervous system is a controlled
substance listed in Schedule II.
This bill provides that any material, compound, mixture, or
preparation which contains any quantity of cathine having a
stimulant effect on the central nervous system, including its
salts, isomers (whether optical, position, or geometric), and
salts of those isomers is possible within the specific chemical
designation is a controlled substance listed in Schedule II.
This bill creates a misdemeanor for the unlawful possession of
khat, cathinone, or cathine punishable by up to one year in
county jail.
This bill makes the possession for sale of khat and cathinone
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for the purpose the sale a felony punishable by 16 months, 2
years or 3 years in state prison.
This bill creates a felony for the transportation and sale of
khat and cathinone, punishable by 2, 3, or 4 years in state
prison.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
California continues to face an extraordinary and severe prison
and jail overcrowding crisis. California's prison capacity
remains nearly exhausted as prisons today continue to be
operated with a significant level of overcrowding.<1> A year
ago, the Legislative Analyst's office summarized the trajectory
of California's inmate population over the last two decades:
During the past 20 years, jail and prison
populations have increased significantly. County
jail populations have increased by about 66
percent over that period, an amount that has been
limited by court-ordered population caps. The
prison population has grown even more dramatically
during that period, tripling since the
mid-1980s.<2>
The level of overcrowding, and the impact of the population
crisis on the day-to-day prison operations, is staggering:
As of December 31, 2006, the California Department
of Corrections and Rehabilitation (CDCR) was
estimated to have 173,100 inmates in the state
prison system, based on CDCR's fall 2006
population projections. However, . . . the
department only operates or contracts for a total
of 156,500 permanent bed capacity (not including
--------------------
<1> Analysis of the 2007-08 Budget Bill: Judicial and Criminal
Justice, Legislative Analyst's Office (February 21, 2007); see
also, court orders, infra.
<2> California's Criminal Justice System: A Primer.
Legislative Analyst's Office (January 2007).
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out-of-state beds, . . . ), resulting in a
shortfall of about 16,600 prison beds relative to
the inmate population. The most significant bed
shortfalls are for Level I, II, and IV inmates, as
well as at reception centers. As a result of the
bed deficits, CDCR houses about 10 percent of the
inmate population in temporary beds, such as in
dayrooms and gyms. In addition, many inmates are
housed in facilities designed for different
security levels. For example, there are currently
about 6,000 high security (Level IV) inmates
housed in beds designed for Level III inmates.
. . . (S)ignificant overcrowding has both
operational and fiscal consequences. Overcrowding
and the use of temporary beds create security
concerns, particularly for medium- and
high-security inmates. Gyms and dayrooms are not
designed to provide security coverage as well as
in permanent housing units, and overcrowding can
contribute to inmate unrest, disturbances, and
assaults. This can result in additional state
costs for medical treatment, workers'
compensation, and staff overtime. In addition,
overcrowding can limit the ability of prisons to
provide rehabilitative, health care, and other
types of programs because prisons were not
designed with sufficient space to provide these
services to the increased population. The
difficulty in providing inmate programs and
services is exacerbated by the use of program
space to house inmates. Also, to the extent that
inmate unrest is caused by overcrowding,
rehabilitation programs and other services can be
disrupted by the resulting lockdowns.<3>
As a result of numerous lawsuits, the state has entered into
several consent decrees agreeing to improve conditions in the
state's prisons. As these cases have continued over the past
---------------------------
<3> Analysis 2007-08 Budget Bill, supra, fn. 1.
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several years, prison conditions nonetheless have failed to
improve and, over the last year, the scrutiny of the federal
courts over California's prisons has intensified.
The federal court has appointed a receiver to take over the
direct management and operation of the prison medical health
care delivery system from the state. The crisis has continued
to escalate and, in July of last year, the federal court
established a three-judge panel to consider placing a cap on the
number of prisoners allowable in California prisons. It is
anticipated that the court will reach its decision this year.
In his order establishing the judicial panel, Judge Thelton
Henderson stated in part:
It is clear to the Court that the crowded conditions
of California's prisons, which are now packed well
beyond their intended capacity, are having - and in
the absence of any intervening remedial action, will
continue to have - a serious impact on the Receiver's
ability to complete the job for which he was
appointed: namely, to eliminate the unconstitutional
conditions surrounding delivery of inmate medical
health care.
. . . (T)his case is also somewhat unique in that even
Defendants acknowledge the seriousness of the
overcrowding problem, which led the Governor to declare
a state of emergency in California's prisons in October
2006. While there remains dispute over whether crowded
conditions are the primary cause of the constitutional
problems with the medical health care system in
California prisons, or whether any relief other than a
prisoner release order will remedy the constitutional
deprivations in this case, there can be no dispute that
overcrowding is at least part of the problem. . . .
The record is equally clear that the Receiver will be
unable to eliminate the constitutional deficiencies at
issue in this case in a reasonable amount of time
unless something is done to address the crowded
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conditions in California's prisons. This Court
therefore believes that a three-judge court should
consider whether a prisoner release order is warranted
. . . . (Hon. Thelton Henderson, Order dated July 23,
2007 in Plata v. Schwarzenegger (N.D. Cal) No. C01-1351
TEH (citations omitted).)
Similarly, Judge Lawrence Karlton stated:
There is no dispute that prisons in California are
seriously and dangerously overcrowded. () The
record suggests there will be no appreciable change
in the prison population in the next two years.
(Hon. Lawrence K. Karlton, Senior Judge, United
States District Court, Order dated July 23, 2007 in
Coleman v. Schwarzenegger (E.D. Cal.) No. S90-0520
LKK JFM P (citations omitted).)
This bill does not appear to aggravate the prison overcrowding
crisis outlined above.
COMMENTS
1. Need for This Bill
According to the author:
AB 1141 is a clean-up measure to help in the
prosecution of khat drug cases. Conforming California
law to federal policy in this area is an important
crime-fighting tool that will bring the full force of
the law against the growing numbers of those who
traffic in this dangerous substance.
2. Prosecutions of Defendants for Conduct Involving Unscheduled
Drugs through Proof the Drug is an Analog of a Scheduled
Drug
As noted in "Existing law," above, California law specifically
provides that a person can be prosecuted for drug crimes if
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the drug involved in the charged act is an "analog" of a
specifically scheduled controlled substance, regardless that
the actual substance is not specifically scheduled. (Health
and Saf. Code 11401.)
The sponsor has informed Committee counsel that persons who
possess khat or engage in khat commerce can be prosecuted under
the California analog statute. In particular, the prosecution
proves that khat is an analog of amphetamine, a drug
specifically listed in Schedule II of the controlled substance
schedules. However, counsel has been unable to find any
published cases considering khat prosecutions brought under the
analog statute.
Prosecutions using the analog statute are more expensive and
time-consuming than other drug prosecutions. The prosecution
must establish that a drug is an analog of a scheduled drug
through testimony of an expert chemist and the jury must find
that fact true beyond a reasonable doubt.
AS PERSONS CAN BE PROSECUTED FOR KHAT CRIMES UNDER THE EXISTING
DRUG ANALOG STATUTE, IS THIS BILL NECESSARY?
3. Background on Khat: Origin, History, Effects, Use and
Derivative Chemicals
The New York State Office of Alcohol and Substance Abuse
Services collects and produces research and educational material
about drugs. The office has published the following discussion
of khat:
Khat (Catha edulis, family Celastraceae), pronounced
"cot" and also known as qat, gat, chat, and miraa, is a
flowering plant native to tropical East Africa.
Believed to originate in Ethiopia, it is a shrub or
small tree, with evergreen leaves, growing to 5-8
meters tall. The flowers grow on short stems and each
flower has 5 white petals. The fruit is oblong and
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contains 1-3 seeds.
Khat has been grown for use as a stimulant for
centuries in the Horn of Africa and the Arabian
Peninsula. There, chewing khat predates the use of
coffee and is used in a similar social context. Its
fresh leaves and tops are chewed or, less frequently,
dried and consumed as tea, in order to achieve a state
of euphoria and stimulation. Khat can also be smoked
or sprinkled on food. The stimulant effect is most
effective when the leaves are still fresh and within 48
hours of cutting the plant, khat will begin to lose its
potency (decrease in cathinone levels).
Khat use has traditionally been confined to the regions
where khat is grown, because only the fresh leaves have
the desired stimulating effects. In recent years
improved roads, off-road motor vehicles and air
transport have increased the global distribution of
this perishable commodity. Traditionally, khat has
been used as a socializing drug, and this is still very
much the case in Yemen, where khat-chewing is a
predominantly male habit. It is mainly a recreational
drug in the countries which grow khat, though it may
also be used by farmers and laborers for reducing
physical fatigue, and by drivers and students for
improving attention. This is similar to the use of the
coca leaf in South America.
Khat is used for its mild euphoric and stimulating
effects. The stimulant effect of the plant was
originally attributed to cathine, a phenethylamine-type
substance isolated from the plant. However, the
attribution was disputed by reports showing the plant
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extracts from fresh leaves contained another substance
more behaviorally active than cathine.
In 1975, the related alkaloid, cathinone, was isolated,
and its absolute configuration was established in 1978.
Cathinone is not very stable and breaks down to
produce cathine and norephedrine. These chemicals
belong to the PPA (phenylpropanolamine) family, a
subset of the phenethylamines related to amphetamines
and the catecholamines, epinephrine and norepinephrine.
PPA has been banned from over the counter cough and
cold preparations in the U.S.
Khat consumption induces mild euphoria and excitement.
Individuals become very talkative under the influence
of the drug and may appear to be unrealistic and
emotionally unstable. Khat can induce manic behaviors
and hyperactivity. Several cases of khat-induced
psychosis have been reported in the literature. Khat
is an effective anorectic and its use also results in
constipation.
Dilated pupils (mydriasis), which are prominent during
khat consumption, reflect the sympathomimetic effects
of the drug, which are also reflected in increased
heart rate and blood pressure. A state of drowsy
hallucinations (hypnagogic hallucinations) may result
as the drug effects wear off. Withdrawal symptoms that
may follow prolonged khat use include lethargy, mild
depression, nightmares, and slight tremor.
Cathine is in Schedule IV and cathinone is in Schedule
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I of the U.S. Controlled Substance Act. The 1993 DEA
rule placing cathinone in Schedule I noted that it was
effectively also banning khat.
4. California has No Procedure or Resources for Determining How
Controlled Substances Should be Scheduled
As is noted in the "Purpose" section above, the function of the
controlled substance schedules is to classify drugs in regard to
risk of abuse in relation to medical benefit. Schedule I drugs
are presumed to have no medical benefit and present great risk
of abuse. Generally speaking, although exceptions abound,
penalties and restrictions for distribution or use diminish from
Schedule I through Schedule V.
Arguably, scheduling decisions would best be done through expert
analysis and research. However, there is no formal or informal
process to evaluate controlled substances in California.
Effectively, legislative committee staff members evaluate bills
proposing scheduling of a drug, read available research and
consider the arguments of lobbyists and interested parties.
Legislators then vote on scheduling bills.
In contrast, the federal government uses an administrative
process for scheduling drugs. The Drug Enforcement
Administration requests evaluation of a drug by the Department
of Health and Human Services. HHS solicits information from the
Food and Drug Administration and the National Institute of Drug
Abuse and other experts. HHS compiles the information and
submits it to the DEA with a recommendation concerning
scheduling.
DOES CALIFORNIA EFFECTIVELY HAVE NO PROCESS FOR EXPERT
EVALUATION FOR PURPOSES OF SCHEDULING CONTROLLED SUBSTANCES?
5. Different Effects and Abuse Potential for Khat, Cathine and
Cathinone; Cultural Considerations
Khat generally means the leaves of the Catha Edulis plant. In
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the Middle East and East Africa, khat has been used for
centuries in social settings to stimulate interaction and
conversation. It appears that drugs isolated from the plant are
not commonly used in areas where khat is grown and where use of
khat is part of the culture. This bill could be criticized as
targeting persons of Middle Eastern descent, particularly
Muslims. People from the Middle East are likely to chew khat
leaves. Users of khat may argue that it is no more dangerous
than alcohol, especially when used in controlled social
settings.
This author and sponsor, perhaps recognizing these cultural
issues, have drafted this bill to provide that simple possession
of khat, cathinone or cathine is a misdemeanor. Possession of
amphetamine - an analog of khat - is an alternate
felony/misdemeanor. Under existing law, a person in possession
of an analog of a scheduled drug can be prosecuted as though the
person possessed the scheduled drug. That is, a person in
possession of khat can effectively be prosecuted for possession
of amphetamine under existing law. (The sponsor has informed
the Committee that khat prosecutions have been successfully
maintained under the analog statute. Committee counsel has been
unable to find any appellate cases on this issue.)
Drug researchers at Virginia Commonwealth University have
likened the development of drugs isolated from Khat to the
development of cocaine from the coca plant. Indigenous people
in South America have chewed coca leaves and brewed coca tea for
hundreds of years. It appears that such use of coca is
relatively benign. Cocaine hydrochloride is produced from coca
through a chemical process. Cocaine is a powerful drug that has
become a widespread drug of abuse.
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Similarly, cathinone is an amphetamine-like stimulant that is
produced from khat or synthesized. (A person chewing khat does
ingest cathinone, but in relatively slowly absorbed and limited
amounts.) An analog of cathinone, called methcathinone, is
stronger than cathinone. Cathinone and methcathinone are much
more likely to produce serious harm to users than the use of
khat in social settings.
The chemical name of cathine is norpseudoephedrine.<4>
Norpseudoephedrine is a regulated chemical in California.
Strict reporting requirements apply to commerce in the
chemical. Possession of norpseudoephedrine and with intent to
manufacture methamphetamine is a felony. (Health & Saf. Code
11383.5.) Cathine is a stimulant, but it appears to be
significantly less powerful than cathinone. The effects of
cathine have been compared to ephedrine, which has been a
common ingredient in nasal decongestant products and so-called
nutritional supplement and diet aids. It appears that
ephedrine is a regulated chemical. As a regulated chemical,
strict reporting requirements are required for commerce in the
chemical. Any sale of a product containing ephedrine must
include a warning of possible negative effects from the drug.
(Health & Saf. Code 110423.) It is a misdemeanor to sell
ephedrine to a minor. (Health & Saf. Code 110423.2.)
A review of the scientific research indicates that khat leaves
fairly rapidly lose potency, especially as concerns the amount
of cathinone ingested by the user. It has been estimated that
khat contains only cathine, and no cathinone, after about 48
hours in an un-refrigerated state. Khat imported into the
United States is likely to be significantly less potent than
fresh khat used in the Middle East. This perhaps indicates that
khat possession, possession for sale and sale should be treated
substantially less harshly than such acts involving cathinone in
isolated or synthesized forms.
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<4> All of these drugs and chemicals have numerous isomers with
slight variations in molecular structure. This bill
specifically places "(+) norpseudoephedrine" (cathine) in
Schedule IV.
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However, the sponsor has noted that fresh khat is imported into
the U.S. through air express services. The use of air express
service allows importation of khat leaves that are still fully
potent. The sponsor also notes reports of khat being cultivated
in Riverside County.
The New York Office of Substance Abuse, in a "Street Advisory"
memo stated the following about khat use:
Fresh khat leaves, which are typically chewed like
tobacco, produce a mild cocaine- or amphetamine-like
euphoria that is much less potent than either substance
with no reports of a rush sensation or paranoia
indicated. By filling the mouth to capacity with fresh
leaves the user then chews intermittently to release
the active components. Chewing khat leaves produces a
strong aroma and generates intense thirst. Casual
users claim khat lifts spirits, sharpens thinking, and,
when its effects wear off, generates mild lapses of
depression similar to those observed among cocaine
users.
This bill punishes the possession, possession for sale, and sale
of khat, cathine and cathinone the same. Arguably, the
penalties for khat should not be as serious as those for cathine
and cathinone, particularly cathinone.
AS CATHINE APPEARS TO HAVE EFFECTS THAT ARE SIMILAR TO EPHEDRINE
(A LEGAL DRUG THAT CANNOT BE SOLD TO MINORS) SHOULD CATHINE BE
AN ILLEGAL SUBSTANCE?
SHOULD POSSESSION OF KHAT, CATHINE OR CATHINONE BE A
MISDEMEANOR?
SHOULD POSSESSION FOR SALE OF THESE SUBSTANCES BE A FELONY, WITH
A PRISON TRIAD OF 16 MONTHS, 2 YEARS OR 3 YEARS?
SHOULD SALE OF THESE SUBSTANCES BE A FELONY, WITH A PRISON TRIAD
OF 2, 3 OR 4 YEARS?
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DOES THE MAKING OF POSSESSION OF KHAT A MISDEMEANOR, AND
COMMERCE IN KHAT A FELONY, INDICATE A CULTURAL BIAS AGAINST
PEOPLE OF MIDDLE EASTERN DESCENT?
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