BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator John Vasconcellos, Chair A
1997-98 Regular Session B
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AB 1731 (Bowler) 1
As Introduced
Hearing date: June 23, 1998
Health and Safety Code
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KETAMINE: UNAUTHORIZED POSSESSION
HISTORY
Source: Attorney General
Prior Legislation: AB 444 (Ferguson, 1991) -- Chapter 294
Support: California Medical Association; California State
Sheriffs' Association; California Peace Officers'
Association; California Police Chiefs'
Association; California Narcotic Officers'
Association; Doris Tate Crime Victims Bureau; Los
Angeles Sheriff
Opposition:California Attorneys for Criminal Justice
Assembly Floor Vote: Ayes 66 - Noes 0
KEY ISSUE
SHOULD PERSONAL POSSESSION OF KETAMINE WITHOUT A PRESCRIPTION BE AN
ALTERNATIVE FELONY/MISDEMEANOR? (SEE COMMENT 6 FOR "THREE STRIKES" ISSUES)
PURPOSE
The purpose of this bill is to criminalize the personal
possession of ketamine without a prescription by making it
an alternate felony/misdemeanor.
Existing law prohibits the sale or possession for the sale
of ketamine, an animal tranquilizer, and is punishable by
16 months, 2 or 3 years in the state prison, or by up to
one year in the county jail. (Health and Safety Code
Section 11379.2)
Under existing law, ketamine is a Schedule III controlled
substance. (Health & Safety Code Section 11056)
Existing law does not prohibit the personal possession of
ketamine without a prescription.
This bill would create an alternate felony/misdemeanor
("wobbler") to possess ketamine without a prescription,
punishable by 16 months, 2 or 3 years in the state prison,
or by up to one year in the county jail.
COMMENTS
1. Expressed Purpose of the Bill
According to the author:
Ketamine is a Schedule III controlled substance.
It is illegal to possess for sale or sell
ketamine. However, possession of ketamine is
exempt from criminal sanction and penalty.
Criminalizing possession enables law enforcement
to investigate the sources of supply and thereby
reduces the number of robberies and burglaries of
veterinary offices.
Ketamine, an anesthetic used by veterinarians, is
a hallucinogen that is very similar to PCP. On
the street, it is referred to as 'Special K' and
has become a new and popular 'designer' drug.
Ketamine is showing up in bars and all night
dance parties, known as 'Raves', that are popular
with teenagers and young adults. An overdose can
starve the brain of oxygen and stop the heart.
Ketamine is extremely difficult to manufacture,
therefore veterinary offices and clinics are the
targets of robberies and burglaries. This
legislation is intended to make the possession of
ketamine a crime in violation of Health and
Safety Code Section 11377.
2. Drug Categories
California law categorizes drugs in five schedules.
Schedule I drugs are those with a high potential for abuse,
no current accepted medical use, and which lead to severe
physical dependence. Heroin is an example of a Schedule I
controlled substance.
Schedule II drugs, such as cocaine, also have a high
potential for abuse and can lead to severe physical and
psychological dependence; but have an accepted medical use
in treatment. Schedules III, IV, and V drugs have
progressively less potential for abuse.
Ketamine is a Schedule III controlled substance.
3. Medical Consequences
Ketamine is an animal tranquilizer used by veterinarians in
surgical procedures on cats and other animals. Besides its
use in veterinary medicine, ketamine also is useful as an
anesthetic in minor surgical and diagnostic procedures
involving human patients. Individuals often steal this
drug from veterinary clinics and inject it. Their behavior
often mimics the behavior of someone on PCP.
Ketamine is a liquid and the most potent ways of using it
is by injection intramuscularly or intravenously. There is
a risk of losing motor control before injection is
completed. Ketamine also can be made into a powder by
evaporating the liquid and reducing it to a fine white
powder that can be smoked or snorted. Because of its
appearance, ketamine is often mistaken for cocaine or
crystal methamphetamine. Some reports indicate that it is
sometimes sold as "MDMA" (Ecstacy) and mixed with other
drugs such as ephedrine or caffeine ("cafeteria use").
Ketamine was first used as an anesthetic because it can
rapidly reduce response to pain. It is now rarely used to
reduce pain response because it can cause hallucinations
and flashbacks.
Ketamine causes hallucinations and as an anesthetic stops
the user from feeling pain, possibly leading the user to
cause unwitting injury to himself or herself. Ketamine
lowers the heart rate; with larger doses, ketamine can lead
to oxygen starvation to the brain and muscles. An overdose
can also cause the heart to stop.
4. Ketamine Use Is Increasing
According to the Drug Enforcement Administration, ketamine
is an emerging drug in San Diego, New York, Miami, and
Newark (Delaware). Its use is also being reported in New
Jersey; Washington, D.C.; Florida; and Georgia. Ketamine
is marketed as "Ketalar" or "Ketaset" to veterinarians or
medical personnel and considered a controlled substance in
California, Connecticut, New Mexico and Oklahoma. A bill
was introduced in Congress in the Spring of 1997 to
schedule ketamine as a Schedule II controlled substance.
5. Legislative History
Personal possession of Schedule III controlled substances
is generally subject to wobbler penalties (16 months, 2
years, or 3 years in the state prison, or up to one year in
a county jail).
AB 444 (Ferguson), Chapter 294, Statutes of 1991, placed
ketamine on the Schedule III list, making it an alternate
felony/misdemeanor to sell or possess ketamine for the
purposes of sale. Because of concerns raised in the
Assembly Public Safety Committee, the personal possession
of ketamine was not criminalized, making the lack of a
penalty for personal possession of ketamine somewhat of an
anomaly.
This bill would eliminate the exemption for possession of
personal use of ketamine, treating it the same as other
Schedule III non-narcotic controlled substances.
SHOULD POSSESSION FOR PERSONAL USE OF KETAMINE WITHOUT A
PRESCRIPTION BE SUBJECT TO THE SAME WOBBLER PENALTIES AS
PERSONAL POSSESSION OF OTHER SCHEDULE III NON-NARCOTIC
CONTROLLED SUBSTANCES?
Possession for personal use of anabolic steroids, also
Schedule III controlled substances, is penalized as a
misdemeanor for a first offense and a felony thereafter.
(Health & Safety Code Section 11377(b)). It would be
possible to make the penalty for possession of ketamine for
personal use the same as the penalty for anabolic steroids.
SHOULD THE FELONY OPTION FOR POSSESSION OF KETAMINE BE
LIMITED TO REPEAT OFFENDERS?
6. " Three Strikes" Concerns
This bill would create a new wobbler offense for personal
possession of ketamine.
California's "Three Strikes" law, AB 971 (Jones/Costa,
Chapter 12, Statutes of 1994), provides that the conviction
of any felony with a prior conviction of a violent or
serious felony must result in twice the term otherwise
provided as punishment (in the case of this felony, a base
term of 16 months, 2 years, or 3 years in prison). In
addition, probation may not be granted, there is no
aggregate term limitation, conduct credits are limited to
20% of the term (instead of the usual 50%), and any
additional convictions must be imposed consecutively.
Thus, a person with no prior felony conviction who is
sentenced to the midterm under this bill would receive a
sentence of 2 years and be eligible for release in 1 year.
However, a person with a prior violent or serious felony
conviction would receive double the term (4 years) and be
eligible for release in 80% of that time, or 3.2 years, an
increase of 320% under "Three Strikes".
If the person has two prior violent or serious felony
convictions, the term under "Three Strikes" for this crime
would be 25 years to life.
The effects of "Three Strikes" may be ameliorated by the
California Supreme Court's decision in People v. Superior
Court (Romero) , 13 Cal.4th 497 (1996), which affirmed the
discretion of judges to strike prior offenses in "Three
Strikes" cases in appropriate circumstances.
It has been the general policy of this Committee to exempt
expansion of use of non-violent felonies from the "Three
Strikes" requirements in order to keep the application of
the "Three Strikes" law from expanding in non-violent
situations.
However, the Committee has generally allowed for parity
between sentences in controlled substance offenses without
exempting the offense from the "Three Strikes" law.
SHOULD THIS FELONY BE EXEMPTED FROM THE PROVISIONS OF THE
"THREE STRIKES" LAW?
7. Effects of This Bill
The intent of this bill is to increase public safety.
Public safety can be provided if the effect of this bill is
to reduce the amount of crime or injury resulting from
crime. Deterrence, incapacitation, and treatment may have
an effect on crime rates.
This bill apparently proposes to provide for public safety
through deterrence and incapacitation.
Incapacitation is generally agreed to increase public
safety when used against serial, violent criminals, such as
sexually violent predators. Deterrence is arguably
effective in some white collar crime, such as industrial
polluting.
Persuasive evidence that either incapacitation or
deterrence is effective in drug offenses is lacking.
Substantial increases in penalties for controlled substance
offenses over the past 20 years do not appear to have
resulted in reduced drug use or increased public safety.
One theory proposes that since drug dealing is an economic
crime, incapacitating a drug dealer or manufacturer creates
a "job opening", which is readily filled by another person.
In that way, increased incapacitation for controlled
substance manufacturing and sales may actually result in
creation of additional criminals.
The cost of incarcerating one prisoner for one year in
state prison exceeds $20,000, not including capital outlay.
The effect of this bill would be the reduction of
available resources to reduce crime in ways that might be
more productive: drug education and treatment programs,
laboratory eradication programs such as the ones described
in the above comment, and jobs creation programs.
According to the California Department of Corrections
1998-2003 Five-Year Facilities Master Plan:
If the proportion of substance abuse commitments
remains at 25 percent, more than 50,000 convicted
drug offenders can be expected in CDC's
facilities at an annual housing cost of over $1
billion. . . . The substance abusing population
is a major factor in the escalating prison
population, further stressing the critical need
to address and interrupt the crime and substance
nexus. Substance abuse treatment offers a future
remedy to the spiraling cost of incarceration and
reincarceration of the drug offender.
WOULD THE ADDITIONAL COSTS OF INCARCERATION CAUSED BY THIS
BILL BE MORE EFFECTIVE IF USED IN DRUG TREATMENT AND OTHER
PROGRAMS?
8. Prison Overcrowding
Our state prison population has increased from 22,500 in
1979 to 155,000 in 1997 and is approximately at 188% of
Department of Corrections "design" capacity. Under the
"Three Strikes" and "10-20-Life" laws and other recent
sentence increases, the population is expected to increase
dramatically over the next five years. The Department of
Corrections predicts that by February 2000 all available
prison bed space will have been exhausted, and the normal
delivery of inmates to state prison from counties will have
to be severely restricted to the most serious felons. By
June 2003, there will be a need to house over 213,000
inmates. Even upon completion of one of the most ambitious
prison construction programs in history (over $6 billion),
our prisons will be more overcrowded in five years than
they are today.
Given the limited space in which to place prisoners, the
Legislature is faced with the problem of determining which
additional classes of persons should be sent to prison.
This bill would increase the total number of inmates in
state prison. It would also increase the percentage of
non-violent to violent inmates.
IS IT WISE TO INCREASE THE PERCENTAGE OF NON-VIOLENT
INMATES WHEN PRISONS ARE CURRENTLY OPERATING AT MAXIMUM
CAPACITY?
9. Arguments in Opposition
The California Attorneys for Criminal Justice do not
believe that:
[T]he new penalties proposed in this bill will do
anything to deter drug use, and are particularly
concerned about the application of felony
penalties for mere possession. Rather than
spending more money to incarcerate more low level
offenders in prisons and jails, as is proposed in
this bill, California should be looking to put
those resources into educational programs, drug
treatment programs and similar efforts that can
help to prevent drug abuse.
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