Fentanyl sentencing, prison reforms among 106 laws taking effect Oct. 1

Legislation enacting harsher penalties for fentanyl possession, requiring unlimited feminine hygiene products for women who are incarcerated, and establishing parameters for prosecutors who use jailhouse informants are among the bills scheduled to go into effect Oct. 1.

Of the 106 bills passed in the 2023 Legislative session that take effect next week, several  measures make changes to the criminal justice and prison systems. 

Some changes had more contentious pathways to becoming law than others. 

Nevada joined several states and the federal government in passing legislation to respond to the growing number of deaths caused by fentanyl, which is a synthetic opioid that is 50 times more potent than heroin. 

Senate Bill 35, backed by Nevada Democratic Attorney General Aaron Ford and opposed by civil rights groups, creates stricter punishments for fentanyl possession and trafficking. 

The bill establishes that anything between 28 and 42 grams of fentanyl is considered a category B felony, which is punishable by one to 10 years in person. 

People who possess or sell between 42 and 100 grams can be charged with high-level trafficking and receive a two- to 15-year-prison sentence. Federal sentencing guidelines include a 5-year minimum sentence for 40 grams and a 10-year minimum for 400 grams. 

A person who knowingly sells a product that contains fentanyl and doesn’t inform the purchaser could be fined up to $50,000 and imprisoned for between two and 20 years. 

Washoe and Clark County public defenders and the Mass Liberation Project warned the bill relies on fear rather than science-based principles for harm reduction, and characterized the legislation as an extension of the war on drugs, which contributed to the United States’ skyrocketing prison population.

During hearings, Ford said he was “not trying to recreate the war on drugs from the crack era.”

Though ultimately passed and signed into law, the legislation never found consensus among party lines, with several Democrats and Republicans voting against the measure. 

Not every bill seeking to change the legal process was as controversial. 

Senate Bill 321, which protects victims of sexual assault from having DNA collected through a rape kit from being used to prosecute them for other crimes, was carried by Republican State Sen. Lisa Krasner and garnered bipartisan support from 19 lawmakers. 

The legislation came after reports that the San Francisco district attorney said the city’s crime lab used DNA from a rape kit in 2016 to tie a survivor of sexual assault to a 2021 burglary. 

Assembly Bill 101, introduced by Democratic Assemblywoman Cecelia González and passed unanimously in both chambers, requires prosecutors using jailhouse informants to disclose the criminal history of the informant.

The bill requires prosecutors to list any benefit provided in exchange for testimony to the court 30 days before the trial. Prosecutors must also disclose other cases in which the informant testified in exchange for a benefit, as well as instances where an informant  recanted their testimony. 

The Innocence Project, Clark and Washoe public defenders officers and Progressive Leadership Alliance of Nevada, all who signed a joint letter in favor of the bill, noted that the use of jailhouse informants led to 185 wrongful convictions nationwide.

That included DeMarlo Berry in Nevada, who was wrongfully convicted and served 22 years in prison. 

Prison reforms

Another one of González’s bills, Assembly Bill 292, requires the department to provide women unlimited feminine hygiene products upon request and expands medical and behavioral health services for pregnant inmates.

The bill requires corrections staff to use the least restrictive restraint on women during and the postpartum period following the delivery. Staff must then submit a report describing the reason for the use of the restraint within five hours. 

AB 292 was among a handful of laws going into effect that were backed by prisoner advocacy groups such as Return Strong. 

Other pieces of legislation that offered reforms to prisons included Assembly Bill 121, which first requires the Department of Corrections to submit a study “and any evidence or data” that justifies attempts to screen or limit inmate mail. 

AB 121, sponsored by Democratic Assemblywoman Venicia Considine, was a response to a failed effort to bring stricter mail screening policies, including prohibiting people from mailing greeting cards and colored drawings –  policies sought by previous Nevada Department of Corrections Director Charles Daniels. 

At a Board of Prison Commissioners meeting in August 2022, Daniels argued the change was needed to prevent drugs from being smuggled into facilities, despite presenting no evidence of data to support the notion. 

Former Governor Steve Sisolak, as a member of the Board of Prison Commissioners at the time, shot down the proposal. 

Senate Bill 416 prevents the department from deducting payments for routine medical copays and emergency medical services, known as “man down” fees. 

The bill, known as the cost of incarceration bill, prevents regulations that markup the price of personal hygiene items sold at the commissary or seek to limit the amount of items purchased by those incarcerated.

The legislation was supported by groups including Return Strong and the Fines and Fees Justice Center of Nevada. 

For several years, advocates with Return Strong have pleaded with lawmakers to fix the high costs thrust upon those who are incarcerated and their families including pricy medical bills and the high costs of hygiene items for purchase at the commissary.

Homeless diversion

As Nevada’s unhoused population skyrockets – Southern Nevada saw a 16% spike since 2022 – lawmakers considered legislation looking at some of the barriers faced by those experiencing homelessness. 

Under Senate Bill 155, people experiencing homelessness who committed misdemeanors can be deferred to a diversion or speciality court. The bill allows courts to reduce or waive fines and fees associated with their offenses if they complete their treatment program. 

Democratic state Sen. James Ohrenschall originally sought to prevent cities from adopting ordinances that punish and criminalize unhoused folks for participating in life-sustaining activities, like camping when there is no available shelter. 

These ordinances often led to unhoused folks being arrested and jailed in the first place. 

However, the original language and intent was completely amended ahead of its first hearing. 

During its first hearing in April, Ohrenschall said citing and arresting people for being unhoused, doesn’t “help solve the problem of helping someone land on their feet or helping them find the housing or services they need.” The amendments, he said, were to address the “concerns of stakeholders,” though he never specifically named the “stakeholders” who insisted on changing the original language.

Another law taking effect Oct. 1 enacted to alleviate the obstacles faced by people experiencing homelessness was Assembly Bill 135, which makes it easier for a person experiencing homelessness to get birth certificates. 

Instead of requiring people to get a notarized statement to submit to the state registrar, they would just have to sign a statement, under penalty of perjury, that they are experiencing homelessness. The bill allows for at least 30 days for a person to submit any missing documents with their application.  

From opioids to catalytic converters 

Among some of the other laws taking effect Oct. 1:

Assembly Bill 132 requires Clark County to create a Regional Opioid Task Force to review opioid overdose facilities, identify gaps in services and develop targeted interventions. While the bill goes into effect Oct 1, the task force has until Jan. 1, 2024 to begin meeting. 

Assembly Bill 404 increases the amount a plaintiff can receive in civil action suits against health providers for negligence. The current amount is $350,000 regardless of the number of people filing suit. The amount will increase by $80,000 starting in January and will gradually increase until January 2029 when it reaches $750,000. 

Senate Bill 22 updates requirements for publishing legal notices in newspapers and allows them to be published on news websites of “a qualified, legal and competent newspaper.”

Senate Bill 243 makes theft of a catalytic converter a category E felony, punishable by one to four years. Those in possession of two to nine converters are subject to a category D felony, which in addition to a one- to four-year sentence comes with a maximum $5,000 fine. The law also makes it illegal for scrap metal processors to purchase or receive used converters from anyone other than a licensed business.