A Nevada state Senate committee heard two bills on Monday that could make it the latest state to significantly reduce the amount of fentanyl possession eligible for trafficking charges in response to the largest overdoses crisis in U.S. history.
The debate has pitted law enforcement officials against harm reduction advocates and has implications for how the deadliest drug in America is prosecuted — and whether low-level users could be lumped in with the traffickers the lawmakers target.
“I’ve had dreams, and frankly nightmares, over ensuring that in pursuit of this bill that we don’t recreate the war on drugs from the crack cocaine days,” said Democratic Attorney General Aaron Ford, who introduced one of the two bills.
Harm reduction experts said the bills would do just that. Law enforcement were more broadly in favor of harsher penalties but opposed a late-amended jail and prison drug treatment program that they say would be hard to implement.
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Fentanyl mostly arrives in the U.S. from Mexico and is mixed into supplies of other drugs, including cocaine, heroin, methamphetamine and counterfeit oxycodone pills. Some users seek it out. Others don’t know they’re taking it.
About 2 milligrams of fentanyl can be fatal, meaning 1 gram could contain hundreds of lethal doses.
Imposing longer prison sentences for possessing smaller amounts of drugs represents a shift in states that in recent years have rolled back drug possession penalties. As overdoses have piled up, other state legislatures are also considering or passing harsher penalties for lower amounts of fentanyl, including Oregon, West Virginia, South Carolina and Alabama.
Nevada AG Aaron Ford presents a bill that enhances fentanyl penalties to a state Senate committee at the state Legislature, in Carson City, Nevada, on April 10, 2023. (AP Photo/Gabe Stern)
Sponsors say the two “companion” bills are meant to give more tools for law enforcement to prosecute traffickers bringing in fentanyl to the state. In Nevada, there were 497 overdose deaths from synthetic opioids like fentanyl, according to the Attorney General’s office.
Democratic Senate Majority Leader Nicole Cannizzaro’s bill gives illicit fentanyl its own substance category and prosecutes “knowingly or intentionally” possessing the drug as low-level felony trafficking starting at 4 grams, with mandatory prison time. Ford’s bill handles mid-to-high level trafficking starting at 14 grams with escalating penalties up to life in prison.
Fentanyl is currently a schedule 2 substance, meaning possession of 100 grams is prosecuted as a trafficking charge — a result of a sweeping 2019 criminal justice reform law that Ford and Cannizzaro supported.
Ford previously described that law’s provision to lower trafficking charges for all drugs as “overinclusive.” But he said on Monday that the proposed bill actually furthers that law’s intent to adjust weights and penalties based on specific drugs.
The coalition of harm reduction advocates said the bill would lump low-level users who need treatment with high-level traffickers who push vast sums of fentanyl into the state. They also say several provisions will erode trust with law enforcement.
Ford’s bill is void from the state’s “Good Samaritan” Law that exempts people from criminal drug possession charges while reporting an overdose. A late amendment from Cannizzaro added the lower amounts to the law.
Among the largest concerns are the state’s crime testing labs, which test only for the presence of fentanyl, not the exact proportion in a mixture of drugs. Thus, people with over 4 grams of any illicit drug containing a few milligrams of fentanyl could be subject to trafficking penalties, several said. Law enforcement have previously said that the switch to a more proportional testing system would be costly. Ford signaled an openness to the state studying how to switch.
“If we’re going to treat it differently, because that’s what they’re saying, then we need to be accurate,” said John Piro, chief deputy public defender in Clark County, which includes Las Vegas, in an interview. “And right now, we’re not accurate.”
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While supporting lower thresholds for trafficking penalties, several law enforcement agencies opposed mandated medication-assisted treatment programs in jails and prisons across the state for substance-use disorders.
“We have a successful (Medication-Assisted Treatment) program,” said Jason Walker of the Washoe County Sheriff’s Department, which includes Reno. “I believe it would be difficult for smaller agencies to put a MAT program together.”
Five bills had been introduced related to fentanyl penalties in Nevada, but the three Republican-backed bills — which give much lower trafficking thresholds — have not gotten a hearing in the Democratic-controlled legislature.
Any bill must be signed by Republican Gov. Joe Lombardo, the former Clark County Sheriff who derided the 2019 criminal justice reform law as “soft-on-crime” and supports making fentanyl possession in any amount the same felony category as trafficking.
The two bills must be voted on this week to move forward. Friday marks the deadline for bills to make it out of their first committee.
