Currently, no statute specifically pertains to fentanyl. Crimes related to it are charged under broader laws related to prohibited substances, according to Sen. Dick Sears, D-Bennington, lead sponsor of the bill, S.22.
Fentanyl, which can be 50 to 100 times more potent than heroin, has become common in the street drug supply. It’s frequently cut with other substances before being sold, in order to stretch profits, and is also commonly sold as heroin, officials say. The drug has been tied to an increase in the rate of fatal overdoses in Vermont and throughout the Northeast.
Burlington Police Chief Brandon del Pozo said the new criminal penalties are needed to get ahead of a disturbing trend in Vermont and neighboring states where fentanyl is increasingly being sold on its own in concentrations that are often fatal.
“If you look at what’s killing people it’s fentanyl,” del Pozo said.
In New Hampshire, 198 people died last year of overdoses where fentanyl was the only drug present. That’s 60 times more than the number of fatal overdoses where heroin was the only drug involved, the chief said. Last year in Vermont, when overdose deaths spiked, fentanyl deaths pulled apace with heroin deaths, he said.
Weinberger, who has criticized the Legislature as failing to address Vermont’s drug epidemic with sufficient urgency, said passing the new penalties into law is one way lawmakers “could have a real impact on the opioid epidemic” before adjournment, which is expected next week.
The mayor was dismissive of a House proposal to further study the issue. “We don’t need further study to know fentanyl is dangerous,” Weinberger said.
Rep. Selene Colburn, P/D-Burlington, is a member of the House Judiciary Committee, which removed the criminal penalties from S.22 and replaced them with the study. She said the bill raised concerns about who could be prosecuted under the new statute.
Her committee heard testimony that the definition of “distribute” could include people who share drugs. There is concern that drug users or low-level dealers, who themselves could be users, could face the harsh criminal penalties under the proposed law, Colburn said.
George said she was not aware of any cases where her office has had to bring reduced charges because fentanyl was the only drug present. So far, the alleged dealers her office has prosecuted were selling drugs that contained some amount of heroin, she said.
That’s partly because many cases involving fentanyl are prosecuted by the U.S. attorney in federal court, where there are already appropriate penalties, she said. That may not always be the case going forward, as fentanyl becomes more prevalent, she said.
Maj. Glenn Hall, with the Vermont State Police, gave the hypothetical of a drug dealer from out of state coming up Interstate 91 in Vermont with an ounce of pure fentanyl. Federal prosecutors in the U.S. attorney’s office may pass on the case because of its relative scale.
A state’s attorney, such as George, would not then have the ability to bring an appropriate charge for possessing a quantity of drugs that could be broken down into hundreds, or even thousands, of potentially fatal doses, Hall said.
Low-level dealers and users who may not know what they’re handling would be protected by language in the bill that would allow the new criminal penalties to apply only when the state can show a person was knowingly distributing fentanyl, George said.
Further, the proposed criminal penalties are largely based on the amount of drugs containing fentanyl — not the concentration of fentanyl in those drugs — and could therefore apply to as little as a dusting at the bottom of a single dose bag of other drugs, Colburn said.
A person found to have knowingly distributed 4 milligrams of “one or more preparations, compounds, mixtures, or substances containing fentanyl” would face 10 years in prison and up to $250,000 in fines, the bill states. The penalties top out at 30 years and $1 million in fines for 70 milligrams or more of drugs containing fentanyl.
Bob Bick, executive director of Howard Center, which opposes the new criminal penalties, compared them to the disparate penalties created by the federal government in the 1980s for powder cocaine versus crack cocaine: a well-intentioned but misguided effort to address a serious problem.
“I think that there could be potential negative outcomes, in terms of targeting whatever subset of the population sees fentanyl as their drug of choice,” Bick said.
When asked about Howard Center’s opposition, del Pozo suggested it’s not the social service organization’s place to weigh in on how drugs are policed.
“Once someone dies (of a drug overdose) they’re no longer under the care of the Howard Center,” del Pozo said. It then falls to his officers and other police agencies to notify family members and conduct death investigations, he added.
The chief said that in the same way he respects Howard Center’s clinical judgments about how to treat drug addiction, the organization should respect law enforcement’s determinations about how to clamp down on the illegal drug trade.
Bick described the chief as “a passionate advocate for addressing the opiate issue” but rejected the notion that Howard Center’s involvement ends when someone dies of an overdose.
“My staff is routinely confronted with the horrible aftermath of an untimely death,” he said.
Earlier this week the Senate passed an amended version of S.22 that replaces the House study proposal with the criminal penalties. The same criminal penalties for fentanyl were added to another House bill, H.503.
As a result, the fate of new criminal penalties for fentanyl is likely to be decided during conference committees between the two chambers on both pieces of legislation.
