Two Republican lawmakers seek to increase fentanyl possession penalties, which some opponents say is wrong move

By Phaedra Haywood, The Santa Fe New Mexican Stronger, more addictive and cheaper to manufacture than many other drugs, the synthetic opioid fentanyl has ravaged the country in recent years — becoming one of leading causes of death among adults ages 18 to 45. New Mexico is no exception. The rate of fentanyl overdose deaths […]

Two Republican lawmakers seek to increase fentanyl possession penalties, which some opponents say is wrong move

By Phaedra Haywood, The Santa Fe New Mexican

Stronger, more addictive and cheaper to manufacture than many other drugs, the synthetic opioid fentanyl has ravaged the country in recent years — becoming one of leading causes of death among adults ages 18 to 45.

New Mexico is no exception.

The rate of fentanyl overdose deaths in the state has increased nearly sevenfold since 2016, according to state Department of Health data, jumping from 2.4 deaths per 100,000 people in 2016 to 16 deaths per 100,000 people in 2020. The drug has caused the death of nearly 600 people in New Mexico since 2016.

Trafficking and overdose cases involving fentanyl “are surpassing all other drugs combined,” in the First Judicial District, chief Deputy District Attorney Anthony Long said in an interview Friday.

“Fentanyl is the main drug we keep coming across,” agreed Santa Fe County Sheriff Adan Mendoza. “It’s here. It’s on the rise, and with that comes a lot of consequences.”

But while authorities agree fentanyl is a scourge, what’s less clear is the best way to curb the problem.

Rep. Bill Rehm, R-Albuquerque, is offering one potential solution. He’s introduced a bill in the Legislature that would increase penalties for fentanyl possession.

House Bill 60 — co-sponsored by Reps. Randall T. Pettigrew, R-Lovington and Stefani Lord, R-Sandia Park — would add three, five and seven years to the sentences of people convicted of possession of fentanyl, depending on how much of the drug the person had at the time of their arrest.

The three-year penalty would kick in when a person possessed 25 or more pills — or a weight equal to 50 milligrams or more — while the seven-year penalty would kick in at 75 pills.

“Fentanyl is out of control and … we are going to have to start doing something about those who are selling it,” Rehm, a retired police officer, said in a phone interview.

Rehm said he’s open to tweaking the amounts that trigger the sentencing enhancements but wanted to start a discussion about the issue among fellow lawmakers.

Rehm’s bill is likely to meet opposition, said Drug Policy Alliance New Mexico Director Emily Kaltenbach said.

“More criminalization of any substance is not going to address New Mexico’s opioid crisis or the adulterated drug supply,” she said.

Criminalization has actually led to a more dangerous drug supply, Kaltenbach added, because it incentivizes the development of more potent drugs.

“If you can make a pill really small but more potent, it’s harder to detect and easier to smuggle into the country,” she said. “And when you have a substance like fentanyl that is synthetic, it is much easier to manufacture than heroin, which is derived from the opium plant.”

Kaltenbach said criminalization will increase the potential for overdoses and “increase the cost to the state.”

Barron Jones, American Civil Liberties Union of New Mexico senior policy strategist, said the organization hadn’t seen the bill, but “overall we believe enhancing criminal penalties for drug possession is going backwards and would do nothing to increase public safety. It’s about time we focus on treating the underlying causes of substance use disorder instead of treating it as a criminal offense.”

Joshua Swatek, manager of the Hepatitis and Harm Reduction program in the state Health Department, declined to take a position on the legislation but said “research shows increased penalties for substance use do not decrease substance use in any way or shape form” and can increase overdoses by making people afraid of getting in trouble if they need to call 911 for help.

“It doesn’t decrease deaths or usage,” he said.

Sheriff Mendoza said he’s not against penalty enhancements but believes it is important to act carefully when addressing drug abuse.

“What we don’t want to do is criminalize addiction,” he said. “We’ve got to look a the bigger picture.”

Chief Deputy DA Long said he didn’t want to take a position on the bill but said it could have unintended consequences — such as increasing the workload of an already overburdened state crime laboratory.

“At this point, the bill seems a little light,” he said. “I don’t think anybody can argue [the fentanyl problem] is exploding right now. But everyone who’s got a stake is going to need to be at the table. We’d have to talk to the Department of Health, Department of Corrections, police, rehab centers. It’s such a huge problem. If we have one side drafting legislation, it tends to be a little lopsided.”

Long said the District Attorney’s Office currently has about 50 active cases involving fentanyl, and many other are in “warrant status” because the defendant hasn’t shown up for court.

Long said the U.S. Attorney’s Office in Albuquerque has taken over some of the district’s cases involving more significant amounts of fentanyl in recent years, in part because federal penalties are more stringent.

He said drug possession when prosecuted under state law is a fourth-degree felony punishable by 18 months, and drug trafficking, a second-degree felony, carries a penalty of zero to nine years.

There is an enhancement for a second trafficking conviction, which carries a mandatory sentence of 18 years. But day-for-day good time credits often erode sentences by as much as half at the state level. Federal prosecutors can send people to prison for as many as 10 or 20 years.

But Long said locking people up isn’t necessarily the goal.

“We’d like more resources for our office so we can make sure when the cases are coming in we are able to properly divert the low-level user,” he said. “If we can get them back to being a functioning member of society, that is a great success. We would love to see that.”

That would require more diversionary and treatment programs, Long said.

A fiscal impact study for bill had not yet been completed Friday. Rehm said he expects one will be available next week.

The bill is scheduled to be heard first by the House Consumer and Public Affairs Committee, but a date for the hearing hadn’t been set.

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