Post Date: May 5, 2017
Earlier this week, the Florida Senate amended HB 477, a bill that, among other things, establishes mandatory minimum sentences for “trafficking” in fentanyl. The Senate’s amendment established a safety valve that allows downward departure from mandatory sentences for fentanyl trafficking offenses in certain circumstances. Earlier today, the House refused to accept the Senate’s amendment, and kicked the bill back to the Senate, where it will have to be voted on today if it’s to pass.
The Senate was right to add a safety valve to HB 477, and the House was wrong to reject it. The primary reason: the bill’s fentanyl trafficking threshold weights fail to distinguish meaningfully between low-level offenders, including addicts, and major traffickers the bill purports to target. The safety valve helps fix that problem.
Here’s the relevant language of HB 477:
4.a. A person who knowingly sells, purchases, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, 4 grams or more of:
(I) Alfentanil, as described in s. 893.03(2)(b)1.;
(II) Carfentanil, as described in s. 893.03(2)(b)6.;
(III) Fentanyl, as described in s. 893.03(2)(b)9.; (IV) Sufentanil, as described in s. 893.03(2)(b)29.;
(V) A fentanyl derivative, as described in s. 893.03(1)(a)62.;
(VI) A controlled substance analog, as described in s. 893.0356, of any substance described in sub-sub-subparagraphs (I)-(V); or . . .
So, the relevant trafficking threshold weight is 4 grams. Anything above that gets a mandatory minimum sentence. Let’s get one thing out of the way right off the bat: Four grams of pure fentanyl is a lot of fentanyl. At 100 micrograms – a plausible single dose for a patient in severe pain – you’d need 40,000 doses to get to 4 grams. Now, regardless of what you think about mandatory minimums, anyone caught with 40,000 doses is almost certainly not just a user, or an addict, etc. Reasonable people can debate whether a mandatory sentence is appropriate in any case, but few would dispute that anyone caught with 40,000 doses of pure fentanyl is more than likely involved in the for-profit drug trade somehow. I certainly wouldn’t, anyway.
OK, the bill is intended to go after drug dealers, and we’re conceding it’s at least reasonable to infer that anyone caught with 4 grams of pure fentanyl is selling fentanyl. So, what’s the problem?
The problem is what comes after “or” in the bill language above. Here it is:
(VII) A mixture containing any substance described in sub-sub-subparagraphs (I)-(VI), commits a felony of the first degree, which felony shall be known as “trafficking in fentanyl,” punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
With that “mixture” language, the relevant langauge of the bill reads like this:
4.a. A person who knowingly sells, purchases, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, 4 grams or more of . . . a mixture containing [fentanyl, etc.], commits a felony of the first degree, which felony shall be known as “trafficking in fentanyl.”
Importantly, the bill does not establish mandatory minimums for trafficking in “a mixture containing 4 grams of fentanyl.” It establishes those penalties for “4 grams or more of a mixture containing” fentanyl. And those are not the same thing. Under HB 477, there is no minimum quantity of fentanyl that must be in a mixture before trafficking penalties can be imposed. The only thing that matters is that there’s a mixture, it contains any amount of fentanyl, and the total mixture weighs more than four grams.
Fine, so what’s a “mixture”? To find out, let’s turn to 893.135, Florida Statutes, which covers drug trafficking crimes:
(6) A mixture, as defined in s. 893.02, containing any controlled substance described in this section includes, but is not limited to, a solution or a dosage unit, including but not limited to, a gelatin capsule, pill, or tablet, containing a controlled substance. For the purpose of clarifying legislative intent regarding the weighing of a mixture containing a controlled substance described in this section, the weight of the controlled substance is the total weight of the mixture, including the controlled substance and any other substance in the mixture. If there is more than one mixture containing the same controlled substance, the weight of the controlled substance is calculated by aggregating the total weight of each mixture.
In lay terms, this means that for the purpose of defining drug trafficking threshold weights – and by extension establishing the weights that trigger mandatory minimum sentences under 893.135, F.S., – the relevant number for any mixture containing fentanyl is the “aggregate total weight” of whatever number of “capsules, pills, or tablets containing a controlled substance” a defendant knowingly possesses, sells, purchases, manufactures, delivers, or brings into the state.
Why is this important? Consider reports like these, which describe what has become a major problem across Florida: counterfeit pills being sold as one drug, but that actually contain fentanyl. Here’s how one report from last March described what’s happening:
It’s a “super pill” and it’s invading the streets of Florida. So far, it’s killed nine people in a matter of weeks.
The lethal contents of this small, white pill are cleverly packaged. The pill looks just like a Xanax. But, looks can be deceiving. And, as it turns out, deadly. The fake Xanax is mixed with a powerful pain medication called Fentanyl, which is a highly addictive, strong pain medication commonly prescribed to cancer patients.
Pinellas County Sheriff Bob Gualtieri warned potential drug buyers: “There’s no other way to put it … You better stop buying this Xanax on the street because nine people are dead.” Another report, from November of last year, noted that, “law enforcement officers call [fentanyl-laced pills] the perfect ‘counterfeit pill,’ posing as common prescription drugs, like Xanax . . .” FDLE Crime Lab Analyst Stephen Hanily added that in some cases, ” . . . the person purchasing it was legitimately looking for xanax and didn’t realize fentanyl was in it.” The FDLE warned that the danger now extends beyond drug addicts, and that “recreational users or experimenting teenagers” could be victimized by counterfeit fentanyl pills.
Fentanyl is turning up in counterfeit painkiller pills, too, and it’s apparently difficult to tell real pills from counterfeit pills. For instance, William Pellen, director of investigations at the medical examiner’s office in Pinellas and Pasco counties, said, “These are pills that are being pressed out to appear to be authentic pharmaceutical xanax and/or oxycodone . . .” One report noted of the fake pills, “The resemblance is so convincing, sometimes officers won’t know what they’ve seized until it is dropped off at a state crime lab.” DEA Agent John Martin says, “To the naked eye, you can’t tell the difference” between real pills and fake pills.
Here’s the argument:
Each those premises is true, and the conclusion follows necessarily from the premises. That means the argument is both valid and sound. But what does any of that have to do with HB 477?
If the conclusion of that argument is correct – and it is – the next step is to determine how many counterfeit fentanyl pills it would take to get to 4 grams. This report claims fake pills “are being manufactured to look like Xanax in size, color and shape, but are slightly thinner than a doctor-prescribed pill.” DEA Agent John Martin says, “To the naked eye, you can’t tell the difference” between real pills and fake pills. If Sheriff Gualtieri and FDLE analyst Hanily are right that fake pills can fool people trying to buy xanax, and if Mr. Pellen is right that “pills are being pressed to appear to be authentic . . . oxycodone,” and if DEA Special Agent Martin is right that you can’t tell the difference with the naked eye, and it’s true that even law enforcement officers can’t tell the difference between real pills and fake pills, then it’s reasonable to assume that fake pills are roughly similar in size and weight to the pills they try to replicate.
If that is true – and it’s at least reasonable to assume it is – then we can look to similar pills to find out the relevant trafficking threshold weights under HB 477. Here, the 2012 OPPAGA report on painkiller trafficking is useful. According to that report (see p. 5), possession of seven hydrocodone pills (10 mg), and 31 oxycodone pills (30 mg) would be sufficient to reach the 4 gram trafficking threshold that existed at the time that report was released. (At least one other reliable source claims eight 5 mg Percocet pills would meet the same threshold.) The OPPAGA report also found that possession of 44 hydrocodone pills would be sufficient to trigger a 25-year mandatory minimum sentence.
Here’s the point: if counterfeit fentanyl pills are being manufactured deliberately and successfully to resemble painkillers, and seven hydrocodone pills is sufficient to reach a 4-gram hydrocodone trafficking threshold, then it’s reasonable to assume that roughly the same number of counterfeit fentanyl pills would be sufficient to reach the same 4-gram fentanyl trafficking threshold.
Let’s revisit the argument above. Our conclusion there was “if the aggregate total weight of counterfeit fentanyl pills possessed by a defendant exceeds 4 grams, that defendant will face mandatory minimum penalties under HB 477.” Now we can add another premise:
The aggregate total weight could exceed four grams at seven counterfeit fentanyl pills designed to replicate 10 mg hydrocodone pills, or eight counterfeit fentanyl pills designed to replicate 5 mg oxycodone pills.
Now we can conclude the argument: Under the assumption that counterfeit pills are the same weight as real pills they’re intended to replicate, defendants who possess seven or eight counterfeit fentanyl pills will face mandatory minimum penalties under HB 477.
If you think you’ve seen this movie before, you have – and it doesn’t end well. In 1999, proponents of new mandatory minimums for heroin and opioids promised those laws would target only “major players” in the drug trade, the kind of drug trafficker who brings in “boatloads of cocaine” into Miami, or grows “three barns full of marijuana.” They assured us that trafficking thresholds in that bill were “drawn very tight” to make sure “somebody that’s merely using” wouldn’t be swept up by the mandatory minimums. (Sound familiar?) As the OPPAGA report found, things didn’t quite work out that way. Instead, Florida has locked up thousands of low-level drug offenders, including addicts, after charging them with “trafficking” in opioids for possessing or selling small quantities of pills. As the report notes:
For those offenders sentenced for trafficking in hydrocodone, 50% were arrested for possessing or selling fewer than 30 pills and 25% were arrested for fewer than 15 pills. For offenders sentenced for trafficking in oxycodone, offenders possessed or sold a median number of 91 pills at the time of their arrests.
The report also looked at the criminal histories of offenders serving mandatory minimums for opioid trafficking. Of those surveyed:
74% had not previously been admitted to prison. Half had either never been on probation or had been on probation solely for drug possession, and 81% did not have a prior history of offenses involving selling or trafficking drugs. Most (84%) had no current or past violent offenses. These offenders tended to have substance abuse problems and were at low risk for recidivism. Prison staff assessments determined that 65% of these offenders needed substance abuse treatment and 61% were at low risk for recidivism.
Locking up these offenders and others serving mandatory minimum drug sentences costs Florida more than $100 million annually. Worst of all, mandatory minimums have not even made a dent in the drug trade. Heroin deaths, opioid deaths, and cocaine deaths are all higher now than they were in 1999. And Florida’s overall drug-induced death rate is nearly 150% higher today than in 1999 when mandatory minimums were adopted. As I’ve noted elsewhere, this is the definition of public policy failure.
In recognition of the incontrovertible fact that offenders who possess just a handful of counterfeit fentanyl pills – and not just major traffickers who have tens of thousands of doses of pure fentanyl – will face mandatory minimum sentences under HB 477, and in recognition of the fact that we’ve been sold this bill of goods before – Jason Pye of FreedomWorks and Sal Nuzzo of the James Madison Institute wonder if policy failure is addictive, too – the Senate wisely adopted language that would allow sentencing courts to depart from the mandatory minimum when compelling reasons convince the court that the mandatory sentence is not necessary for the protection of the public. This is the same standard that has allowed Florida judges to depart from mandatory sentences for habitual felony offenders for two decades, and it’s roughly the standard adopted as a model policy by the American Legislative Exchange Council. (You can read my report on ALEC’s model policy and safety valves generally here.) It’s also similar to drug trafficking safety valves already adopted in Georgia and Mississippi.
The Senate amendment does nothing more than allow courts to look at all of the relevant facts surrounding a defendant’s case and impose the sentence most appropriate for that crime. For repeat offenders, hardened drug dealers, and major traffickers, that would almost certainly mean real prison time – even without the mandatory minimums fentanyl trafficking is punishable by up to 30 years in prison under the bill. For people struggling with addiction and other low-level offenders, it might mean treatment or some other alternative sanction, like drug courts, which Attorney General Pam Bondi has described as the “the centerpiece for reducing substance abuse and crime” in Florida.
In fact, by allowing diversion of low-level offenders into drug courts, the Senate’s safety valve implements some of Attorney General Bondi’s wisdom:
Florida must expand drug courts across the state to admit more non-violent prescription drug offenders. Doing so not only increases overall savings to the state’s budget because fewer offenders would be sentenced to costly prison time, but also decreases crime rates overall by effectively shortening a non-violent offender’s nascent criminal history by intervening earlier with effective drug treatment consisting, in part, of swift and certain sanctions.
As Attorney General Bondi’s 2012 report showed:
It is estimated that every $1 spent on drug courts results in costs savings of anywhere from $1.74 to $6.32 per participant. On average, drug courts cost $4,333 per client, but they save $4,705 for taxpayers and $4,395 for potential victims. But even these costs are minimal compared to the costs of incarceration, which are, on average, $19,469 per inmate per year. A 2005 Government Accountability Office report showed Florida Office of the Attorney General lower percentages of drug court program participants were rearrested or reconvicted. Drug court program participants also generally had longer times to first arrest or conviction than comparison group members. When comparing the results of treatment through drug courts, and results from standard punishment, it becomes apparent that drug courts are highly effective in reducing crime and consequently taxpayer expense.
These benefits are exactly what the Senate amendment would provide for any low-level drug offenders accidentally swept up by HB 477. Unfortunately, the House, apparently under the erroneous assumption that the bill really does exclude such low-level offenders, refused the Senate’s amendment and sent the bill back. But the Senate was right. The safety valve will ensure that no low-level drug offender charged with fentanyl trafficking will be sent to prison for decades over a judge’s objection, the way so many have been over the past 18 years. The Senate amendment is a prudent, reasonable, common sense measure that not only mitigates against potential injustice, but reflects the overwhelming consensus on this issue across the ideological spectrum.
The Senate is right – HB 477 needs a safety valve. I hope those who spoke so eloquently on behalf of their position earlier this week stand their ground, show the courage of their convictions, and protect their good amendment against unwarranted attack.