House Moves To Increase Penalty For Fentanyl Trafficking

The House on Wednesday unanimously passed a bill that makes trafficking fentanyl, a powerful opioid, a crime punishable by up to 20 years in prison.

The bill (H.3755), filed by House Judiciary Chairman John Fernandes and Attorney General Maura Healey, allows prosecutors to charged people in possession of more than 10 grams of fentanyl with the more serious crime of trafficking.

The drug has some medical applications, but is also manufactured and sold by drug dealers.

"Traffickers have found it to be an easy drug to sell on the street mixed with heroin, which has created part of the crisis we see with the number of deaths occurring across Massachusetts," Fernandes said. "Today the heroin on the street itself is of a very high potency level, an extremely high potency level. When cut with fentanyl, it becomes a cocktail that can kill immediately because of the speed with which the fentanyl acts."

The bill passed the House by a vote of 152-0 and now moves to the Senate.

Though the bill was eventually approved with broad support, the House engaged in lively debate over an amendment filed by Rep. Timothy Whelan (R-Brewster) that would have imposed a tiered system of mandatory minimum sentences and minimum monetary fines for trafficking fentanyl based on the amount being trafficked.

When Whelan's amendment was introduced, Rep. Timothy Madden (D-Nantucket) questioned whether the amendment was beyond the scope of the original bill. Rep. Paul Donato (D-Medford) was presiding over the House and ruled that because Whelan's amendment included the imposition of fines — and because the bill included no provision for fines — it was beyond the scope of the bill, a ruling that drew the ire of the House Republicans.

"It's amazing that this ruling has been made. Each time we are in this chamber, as infrequent as it may be, we seem to continue to go down this path of restricting the members' ability to offer amendments," House Minority Leader Brad Jones said. "How can we make a ruling that says the sentences for the penalty of which we're adding in for this drug are off the table for debate? It's absurd. It's ridiculous. We should be better than that."

Rep. Marc Lombardo (R-Billerica) said, "To think we would allow a mandatory minimum on marijuana and not on this drug blows my mind."

Ultimately, Donato's ruling was upheld by a 111-40 vote of the members and Whelan's amendment was laid aside.

After standing in recess for more than an hour, the House returned and Whelan introduced a revised amendment that included a tiered mandatory minimum sentence structure, but did not include any fines.

Before the House voted on that amendment, Fernandes introduced a further amendment adding to Whalen's amendment a provison that effectively renders Whalen's mandatory minimum language powerless until multiple state secretariats conduct full studies of the amendment's impacts on local economies and additional legislation has been filed and enacted.

Jones said that while the Patrick administration might have never carried out studies put up as roadblocks to policies backed by Republicans, House leadership is concerned that the Baker administration might "actually do it."

Jones described House Democrats' floor action as "a parliamentary way of killing the underlying amendment."

"We're basically saying if you get caught with the necessary amount to trigger trafficking, you'd be facing a minimum mandatory for marijuana or heroin or cocaine, but if you hit the triggering amount here you won't face a minimum mandatory," the North Reading Republican told reporters. He spoke favorably about the overall bill.

Joining with Republicans in voting against the further amendment were Democratic Reps. Tom Calter, Stephen DiNatale, James Dwyer, Colleen Garry, Paul Heroux, John Rogers, Dennis Rosa, Benjamin Swan and Walter Timilty.

Legislative leaders and Gov. Charlie Baker have asked for an outside review of the state's criminal justice system by the Council of State Governments, which House Speaker Robert DeLeo has said is unlikely to be completed before the end of the two-year session. Fernandes said that before approving new mandatory minimum sentences the Legislature should wait until completion of the study.

Regardless of the partisan fight over Whelan's amendment, both Democrats and Republicans praised the legislation that ultimately passed.

"This is one of those rare bills that may actually save lives," Rep. Paul Tucker (D-Salem), who along with Whelan filed similar legislation this summer, said.

Whelan also addressed the House prior to the bill's passage and told his colleagues that he received information from the Office of the chief medical examiner reporting that between October 2013 and October 2014, the officer processed 219 overdose deaths in which fentanyl was present in the deceased's blood. The office also reported, he said, that from October 2014 to Monday the number of fentanyl-related overdoses ballooned to 336, an increase of about 50 percent.

"This is a total of 555 people, 555 sons and daughters, 555 grieving families," Whelan said. "I'm proud to stand with this Legislature to take some action to criminalize the trafficking of fentanyl and to hold these [traffickers] accountable."

State law already criminalizes possession of non-prescription fentanyl as well as dealing the synthetic substance, which has increasingly popped up on law enforcement radar.

State Police Superintendent Col. Richard McKeon in August said that the state's drug lab detected five cases of fentanyl in 2013, 170 cases in 2014 and 473 cases of drugs with fentanyl so far this year. The Department of Public Health has placed the death toll of accidental opioid overdoses in 2014 at 1,256, up from 939 in 2013.