Fentanyl bills put NV on path to drug war mistakes of the past, critics warn

Erica Roth with the Washoe County Public Defender’s Office held up four ubiquitous pink sugar packets at her testimony against two sister bills that criminalize possession of fentanyl or any derivative or mixture that contains fentanyl as trafficking starting at 4 grams. 

“We have four grams of sugar here,” Roth told the Senate Committee on Judiciary on Monday. “If three of those grams are cocaine and one of those grams is fentanyl, the person in possession of this will now be a drug trafficker. Fentanyl is deadly, but the evidence is undisputed that so are these bills.”

Under current Nevada statute, a person is guilty of low-level trafficking if the quantity is 100 grams or more but less than 400 grams and is guilty of high-level trafficking if there are more than 400 grams of a Schedule II controlled substance like fentanyl.

These bills, Senate Bill 35 and Senate Bill 343 are part of a nationwide legislative movement in states to enact harsher penalties for those in possession of fentanyl. At the federal level, Congress earlier this year introduced the Halt All Lethal Trafficking of Fentanyl (HALT) Act which would increase mandatory minimum sentencing for fentanyl-related substances.

Senate Majority Leader Nicole Cannizzaro and Attorney General Aaron Ford, both Democrats, introduced the bills as complementary measures that would classify possession or trafficking of any drug that contains fentanyl as a felony, with the lowest offense for those who possess more than 4 grams and less than 14 grams would be classified as a category B felony, punishable by imprisonment for 6 years and a fine of up to $50,000 and would go up to a  class A felony with a fine of not more than $500,000 and 20 years in prison for 28 grams or more. 

“These two bills work in tandem,” Ford said at the hearing. “I’m not trying to recreate the war on drugs from the crack era.”  

Critics of the bills, like Roth, said they’re reminiscent of America’s war on drugs, which antagonized and punished entire communities, including Blacks, Latinos, and those living in poverty. 

The opioid epidemic that started over a decade ago with the overprescription of opioids escalated from 2019 to 2020 at the height of the COVID-19 pandemic when Nevada saw opioid-related overdoses deaths increase by 42%, higher than the national average of 33%, and fentanyl-involved overdose deaths increased by 227% in the state, according to the 2022 Nevada Opioid Needs Assessment and Statewide Plan released in December. 

Fentanyl is 50 times more potent than heroin and 100 times more powerful than morphine, according to the Centers for Disease Control and Prevention (CDC). The illicit substance is often found in other drugs like cocaine and pills and is not able to be detected by sight, taste, smell, or touch. 

Republican Gov. Joe Lombardo, a former sheriff, is backing even stricter legislation that makes possession of any amount of fentanyl the same felony threshold as trafficking. 

The bills being championed by Ford and Cannizzaro do not amend the current drug trafficking statutes nor address the trafficking, sale, or manufacturing of fentanyl that is cut and laced into the drug supply.

In a letter of opposition, Roth noted that the bill would not hold “those who are truly responsible for trafficking in illicit fentanyl,” like the executive director of the San Jose police union who was charged with attempting to import illegal fentanyl from overseas. 

Fentanyl-related overdose deaths among adolescents 10 to 19 years old increased 182% from 2019 to 2021, according to the CDC’s December 2022 Morbidity and Mortality Weekly Report (MMWR).  

Many people who use drugs are unaware that the substance they are using has been cut with fentanyl including pills like Adderall, MDMA, and Xanax or powders like cocaine. 

The state’s crime lab cannot do quantitative testing for drugs that would be able to tell the amount of substance. For example, the state crime lab can’t tell how much fentanyl is present in a drug that is cut with cocaine or counterfeit pills. 

Ford’s bill contains an amendment for Medical Assisted Treatment (MAT) for those incarcerated for fentanyl possession. That amendment was opposed by law enforcement organizations, including the Washoe County Sheriff’s Office and the Nevada Sheriffs’ and Chiefs’ Association. 

Like Nixon, like Reagan

The United States accounts for less than 5% of the world’s population, but almost 25% of its prisoners, many of whom have been arrested, prosecuted, and incarcerated for drug law violations since the 1970s when President Richard Nixon declared a “War on Drugs” that pushed through mandatory sentencing laws for possessions. Under heightened public anxiety over drugs during the 1980s, President Ronald Reagan and Congress enacted the Anti-Drug Abuse Act of 1986, which mandated a 5-year minimum sentence for possession of 5 grams of crack cocaine. Someone would have had to possess 100 times as much powder cocaine to receive the same sentence, a wanton discrepancy that would exemplify the drug war’s deepening of the racial and class divide in America. 

“We will throw away a whole generation of Nevadans again,” said John Piro, a Clark County public defender. 

Opposition to the bill also came from the Washoe County Public Defender Office, Washoe County Health District, ACLU NV, Battle Born Progress, addiction recovery professionals, the grassroots organization Return Strong which works towards “deconstructing the prison industrial complex,” and multiple individual Nevadans who told lawmakers how they witnessed the impacts of criminalizing addiction and substance misuse.

“My husband was born in prison. He was born addicted to heroin and crack,” said Jodi Hocking, the founder, and director of Return Strong. “There will always be someone selling a drug somewhere, and the only way to really stop that, this is what he says, the only way to stop that is to deal with the drug addiction and the underlying issues that are there.”

The most effective policies to address the opioid crisis in Nevada include increasing access to Narcan, fentanyl testing strips, limiting child welfare involvement, expanding screening and early intervention programs, improving access to behavioral health care, and measures to improve public health, according to the State of Nevada Department of Health and Human Services Nevada Opioid Needs Assessment and Statewide Plan 2022. 

“Even the report issued by this state planning on how to address the opioid abuse and overdose did not recommend increasing criminal penalties,” Roth said. “I understand the need to do something, but we must not return to the draconian penalties of the 1980s and 1990s.”

The harsher penalties for possession did not deter drug use, failed to reduce recidivism, targeted people who have no or minor roles in drug distribution – nearly half of all those who were arrested being street-level dealers or below – and increased costs for the federal government,  according to a Pew Charitable Trusts policy brief. 

Mandatory sentencing laws not only impact the individual but disrupt the family dynamic and outcome for generations —10% of children with mothers who are incarcerated are placed in foster care and 79% are placed in care with a relative, according to an ACLU report on the impact of drug sentencing laws. 

Bills like Nevada’s and the federal HALT Act have received backlash from advocacy groups, public defenders, treatment facilities, public health organizations, and law enforcement agencies. 

In a letter to Congress, a coalition of non-partisan national, state, and local faith leaders, nonprofits, and public policy organizations opposing aggressive criminalization of fentanyl stated that “The HALT Fentanyl Act and other bills proposing the permanent classwide scheduling of (fentanyl-related substances) are yet another iterations of the drug war’s ineffective and punitive strategies. To prevent overdose, Congress must invest in public health solutions to mitigate the harms of illicit fentanyl.”

Ford and Cannizzaro said that while there is a public health component to the fentanyl crisis, it also warrants a law enforcement response.

“Some argue this is a public health issue and has nothing to do with public safety. I think it’s both. I think it’s both. I respectfully disagree with the notion that the only approach to addressing this issue is public health,” Ford said at the hearing.

The City of Henderson and the Nevada Republican Club supported the bill, with Susan Proffitt the vice president of the Nevada Republican Club saying it does not go “far enough.” 

The bills were heard, but no action was taken.