The current legislative session has seen dozens of proposals to create or enhance criminal penalties for fentanyl-related charges, many of which are still in play or have already been passed.
Lower thresholds for mandatory minimum sentences are gaining ground almost everywhere. For example, an Indiana bill currently under review in the House would lower the threshold weights that trigger existing penalties for fentanyl- and methamphetamine-related convictions. In one attempt that did fail, a Virginia bill would have established a mandatory minimum sentence of five years for distribution of “fewer than 10 pills containing a detectable amount of fentanyl.”
Some states are removing language that specifically criminalized the “knowing” distribution of fentanyl. A West Virginia bill moving through the legislature would change only two words to the state’s existing fentanyl penalties, dropping the requirement that someone charged with distribution had to have been aware that the substance contained fentanyl.
Some states like Hawaii are reconciling fentanyl possession penalties with those for Schedule I controlled substances; that bill has already been sent to the governor’s desk. Several states are applying criminal penalties to fentanyl that have previously been reserved for methamphetamine.
Among other emerging (or solidifying) patterns are fentanyl homicide charges, expanded mandatory minimums, drug-impaired driving charges and anything that can be pegged to child endangerment. And as the federal HALT Fentanyl Act gets closer and closer to becoming law, many states have been taking a similar “class-wide” approach to how they criminalize fentanyl possession and distribution.
Drug-Impaired Driving Penalties
Montana is poised to create a new law establishing blood-concentration thresholds for substances other than alcohol and marijuana. HB 344 applies to fentanyl and a handful of other controlled substances, and was advancing through the Senate Judiciary Committee as of March 25.
In Kentucky, similar legislation would establish DUI penalties for fentanyl and other controlled substances based on blood tests taken within a two-hour time limit. A Senate committee received the bill in early March and has not yet advanced it.
An earlier version of the Montana bill included urine testing before being revised to blood-testing only, but a Nevada bill would use both to establish DUI penalties for fentanyl as well as MDMA. It was introduced in the Senate where it has not yet been discussed, but the state’s crossover day isn’t until May 15.
Lower Thresholds, Class-Wide Sentencing
Tennessee appears likely to drop its threshold for felony distribution from 150 grams of fentanyl to 50 grams. The threshold applies to “any fentanyl derivative or analog.” The Senate bill has crossed over to the House and is slated for its next hearing April 2.
A House bill introduced in Michigan would establish weight-based mandatory minimums for fentanyl and analogs like carfentanil, ranging from five years to life. It also appears to invite class-wide penalties by specifying maximums (not minimums) “if the substance is a substance that is not listed.”
New Hampshire is doing so more explicitly. The state appears likely to establish class-wide mandatory minimums with SB 14, which crossed over to the House on March 28. Under the proposed bill, any violation involving “a fentanyl class drug” would carry a mandatory minimum sentence of 3.5 years for a quantity of 20 grams or more, or seven years for a quantity of 50 grams of more. Those quantities include the weight of “any adulterants or dilutants.”
Georgia’s “Fentanyl Eradication and Removal Act,” which lowers thresholds for mandatory minimum, applies to “the fentanyl analog structural class.” It was advancing through the Senate as of March 28.
Iowa is considering a bill that would allow distribution of any fentanyl-related substance to be prosecuted as first-degree murder, if it could be linked to a fatal overdose. A conviction would mean a life sentence without possibility of parole.
Maine is considering legislation that would enhance penalties specific to powder fentanyl. Distribution linked to overdose—not necessarily fatal—would be a Class A felony, the tier with the most severe penalties.
Child Exposure Penalties
A California proposal to make fentanyl distribution to a minor a “serious felony” is scheduled for a Senate Committee hearing on April 1. The classification already includes equivalent charges for meth, cocaine, heroin and PCP.
A wide-ranging drug trafficking bill in Ohio includes an increase to mandatory minimums for fentanyl distribution within 1,000 feet of a school.
In Illinois, a fentanyl distribution bill moving through the House would establish a mandatory minimum sentence of nine years, with an additional five years tacked on for fentanyl or fentanyl analogs packaged with “a bright color or coloring scheme [or] the appearance of a cereal, candy, vitamin, gummy or chewable product such as a gum or gelatin-based product [or] a cartoon character imprint.”
In Minnesota, HF 897—“Exposing Children and Vulnerable Adults to Fentanyl”—would establish a new felony with a mandatory minimum sentence of five years “on persons who knowingly cause or permit a child or vulnerable adult to inhale, be exposed to, have contact with, or ingest fentanyl.” The language comes from a similar statute for methamphetamine. As of March 26 it was under review by the Children and Families Finance and Policy Committee.
In addition to increasing its threshold-based sentencing guidelines, Missouri is so far advancing a bill that would make fentanyl possession grounds for child endangerment. SB 143 had its most recent committee hearing on March 25.
“Under current law, a person commits the offense of endangering the welfare of a child in the first degree if he or she unlawfully manufactures or possesses amphetamine, methamphetamine, or any of their analogues,” the bill states. “This act adds fentanyl and carfentanil.”
The Tennessee legislature is doing the same. Under SB1415, “a person engages in conduct that places a child in imminent danger of death, bodily injury, or physical or mental impairment if the person unlawfully possesses any amount of fentanyl, carfentanil, remifentanil, alfentanil or thiafentanil in the presence of the child.” The bill is scheduled for a Senate hearing March 31.
Chemical Weapon/Terrorism Penalties
Arizona currently punishes drug possession with mandatory probation and treatment—with the patient liable for the costs. Criminal sentencing was reserved for people with prior convictions, people who rejected the probation terms or people who were in possession of methamphetamine. On March 26, the Senate advanced a proposal that would make fentanyl possession also ineligible for probation.
Separate legislation that would designate drug-trafficking organizations “terrorist” groups in Arizona is under review in the House.
In a similar vein, an Ohio bill urging Congress to designate fentanyl a weapon of mass destruction has crossed from the Senate to the House. West Virginia is considering an Anti-Terrorism Act that would include a one-line mention of fentanyl, “designated as a weapon of mass destruction.” Governor Patrick Morrissey (R) issued an executive order to that effect upon taking office in January.
Image (cropped) via Boston Police Department
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