PHOENIX — Legislation to require mandatory 5-year prison terms for anyone who sells even the slightest amount of opioids appears dead, at least in its current form.
Current law says people convicted of possession of narcotics for sale must be sentenced to at least four years behind bars. But that statute also says that those who have sold just a small amount are eligible for probation.
The version of HB 2036 approved Wednesday by the House Judiciary Committee would say that probation option does not apply if the drug is heroin or fentanyl, the latter a synthetic and particularly concentrated opioid. But even Rep. Steve Pierce, R-Prescott, who agreed to sponsor the legislation at the behest of the Prescott Courier, questioned whether such a proposal makes sense, especially in the way it also would sweep up those who sell drugs to support their own habit.
“I think we have too many people who are incarcerated that need treatment,” he said. And then there’s the cost, with the cost of running the Department of Corrections eating up about 10 percent of the entire state budget.
“Frankly, we can’t afford to keep doing what we’ve been doing,” Pierce told colleagues.
He was not alone.
Several members of the panel, including the six who voted for it, said they had serious questions about whether putting more people behind bars is the solution. More to the point, a few made it clear that they would not support the bill when it goes to the full House unless substantial changes are made.
Wednesday’s vote followed nearly two hours of testimony, some from people whose children died from fentanyl overdoses.
Terri Morales told lawmakers how her 19-year-old son Jacob died in 2018 after taking what she said was an accidental overdose. She said her son and a friend, who also died, were given some sort of “counterfeit” pills.
The man who sold the drugs to them, Morales said, was placed on probation.
Tim Wiederaenders, senior editor at the Courier, told lawmakers the 14-month campaign against fentanyl by his paper found that drug dealers — including those whose products have killed people — were not getting appropriate prison terms. He said that includes people selling a few pills and people selling 500 pills.
“Very few of the people who’ve been caught with these drugs that they’re selling have done time in jail or prison,” Wiederaenders said.
But Molly Gill who represents Families Against Mandatory Minimums, said the legislation is far too sweeping.
She said it would be one thing if it were solely going after those who manufacture the drug or were major distributors. But Gill said this legislation also would apply to those who were selling small quantities of the drug to support their own addiction.
"The question today is, do you want to lock up these people for five years?” she asked.
“I have an issue with continuing to go down the path of putting substance abusers in prison,” said Rep. Bret Roberts, R-Maricopa. He said the only way the legislation might be acceptable to him if the focus were narrowed, perhaps with the mandatory sentencing applying only to those who sold more than a certain amount.
But that concept provoked a passionate reaction from Richard Haddad, the news director for the parent company that publishes the Courier and its allied papers.
“Yes, we should be working on reform, we should be getting the less dangerous offenders out of prison,” he said. But he said a minimum makes no sense with fentanyl where one to three milligrams “can kill you.”
“And we have seen it kill our children,” Haddad said.
Anyway, he said, saying that a small amount of the deadly drug should entitle someone to a more lenient penalty is like saying someone who shows up at a school with one bullet in a gun deserves different legal treatment than someone coming to school with 40 bullets in a gun.
“One will kill,” Haddad said. “We wouldn’t be talking about mandatory minimum sentencing if somebody walked into school and shot a child.”
But Joel Feinman who heads the Pima County Public Defender’s Office, argued that the law needs to recognize that not everyone who sells fentanyl or heroin — which also would be covered by this bill — is the same.
He said his own study found that 75 percent of those charged with selling drugs were “small-time users selling drugs to support their habit.” And 59 percent of that group, Feinman said, were first-time offenders.
Rep. Walt Blackman, R-Snowflake, said it is that distinction that the current version of HB 2036 fails to recognize, saying approval of the bill would send even more people to state prisons which already do not have the resources to treat the underlying drug addiction and abuse problems.
“These folks are not getting the treatment they need,” he said. “Upon exiting, they still have the problem.”
And Blackman told colleagues they should not count on his vote if the bill that reaches the House floor is not substantially altered to differentiate between users and true drug dealers.
Rep. Mark Finchem, R-Oro Valley, questioned whether limiting the discretion of judges on the sentences they impose really gets at the root of the problem. He said if there are major dealers getting away with light terms — or even probation — perhaps the fault lies with prosecutors who do not pursue harsher sentences.
Only Rep. Jay Lawrence, R-Scottsdale, seemed inclined to support the measure as crafted, lashing out at Gill’s organization and those who question the cost to taxpayers of locking up addicts.
“I almost want to say boo-hoo, boo-hoo,” he said.
“FAMM is so worried about the $100,000 (prison) bed,” Lawrence continued. “And I’m thinking about people that are dying from fentanyl, dead bodies.”