An Arkansas House panel on Thursday passed a bill intended to hold dealers of fentanyl and other dangerous drugs responsible for overdose deaths.
In a voice vote with audible dissent from Rep. Andrew Collins, D-Little Rock, the Committee on Judiciary advanced House Bill 1456, which would create the "Fentanyl Enforcement and Accountability Act of 2023" and establish "death by delivery" offenses with strict criminal penalties.
The measure, which Gov. Sarah Huckabee Sanders has endorsed as part of a broader criminal justice package, moves to the full House for further consideration.
Bill sponsor Rep. Jimmy Gazaway, R-Paragould, said the legislation is needed to address the crisis of fentanyl overdose deaths.
"Approximately 200 people die every day in the United States by overdose on synthetic opioids," Gazaway said. "That's the equivalent of a Boeing 747 going down every single day and killing every person onboard."
Fentanyl is 50 times stronger than heroin and 100 times stronger than morphine. While fentanyl may be used by doctors to treat severe pain, illicitly manufactured fentanyl is often added to other drugs to make them cheaper, more powerful, more addictive and more dangerous, according to the U.S. Centers for Disease Control and Prevention.
Because of its extreme potency, even a small dose of fentanyl may be fatal, Gazaway said.
In recent years, Arkansas has seen a spike in deaths due to fentanyl overdoses. Five years ago, the state recorded eight deaths and in 2022 there were almost 300 deaths, said Cindy Moran, deputy director of Arkansas State Crime Lab. Gazaway noted these figures only represent overdose deaths that the state is aware of.
Under HB1456, a dealer would be guilty of "aggravated death by delivery" if they knowingly deliver fentanyl to a person and the person dies as a result of taking the drug. This offense would carry a sentence of 20 to 60 years or life.
Collins voiced concerns the "death by delivery" offenses in the bill do not consider the mental state of the person who delivers a drug. While he recognized fentanyl "is a terrible public health scourge" that needs to be confronted seriously, he noted that a dealer who provides a drug that results in a person dying would face a significantly harsher sentence than a dealer who provides the same drug but does not cause a fatal overdose.
Gazaway said he expected the "death by delivery" offenses to act as a deterrent. When asked if he could point to evidence that stricter penalties would function as a deterrent, Gazaway said determining how many people don't commit a crime because of the penalties it carries is challenging.
"I do think this sends a strong message that will have a deterrent effect," he said.
If a dealer provides fentanyl, methamphetamine, heroin or cocaine to a minor and the minor dies, the dealer also would be guilty of "aggravated death by delivery." If the person is less than three years older than the minor who died, the offender would face a prison sentence of 20 to 60 years or life. Otherwise, the person would face a life sentence.
Those who commit the offense of "predatory marketing of fentanyl to minors" by packaging the drug in a way to appeal to children could face a sentence of life in prison and a $1 million fine.
HB1456 also would create an offense for "death by delivery in the first degree" which would apply if a person delivers methamphetamine, heroin or cocaine that results in an overdose death.
This offense would be a Class Y felony, which carries a sentence of 10 to 40 years or life. In certain cases, including if the dealer does not have a prior felony conviction, the offense would be a Class A felony, which is punishable by six to 30 years of imprisonment.
The bill also includes a "death by delivery in the second degree" offense for delivering other controlled substances that result in the death of another person. Depending on the circumstances, this offense could count as a Class A, B or Y felony.
A person found guilty of "trafficking of fentanyl" under the bill would face a prison sentence of 25 to 60 years and a fine of $1 million.
Protections under the Joshua Ashley-Pauley Act, which provides immunity from prosecution for those seeking medical assistance for someone suffering from a drug overdose, would still apply. Consensual ingestion of a drug would not count as a defense from prosecution under the bill.
Fentanyl test strips also would no longer be considered drug paraphernalia if the bill is passed, to no longer punish drug users for testing for the substance which can often be mixed into other drugs, making them more lethal.
Before passing the bill, the panel approved an amendment that would tie sentencing requirements for offenses to Senate Bill 495, which aims to overhaul Arkansas' parole system. If both bills pass, the offenders found guilty of "aggravated death by delivery" and "predatory marketing of fentanyl to minors" would have to serve 100% of their prison sentence. Those found guilty of death by delivery in the first and second degree would have to serve at least 85% of their sentence.
The committee also passed House Bill 1663, which would establish penalties for "knowingly exposing another person to fentanyl." The measure, sponsored by Gazaway, moves to the full House for further action.
Under HB1663, a person would be guilty of "knowingly exposing another person to fentanyl" in the first degree if the exposed person received a serious physical injury. If the exposed person suffers a physical injury, the offender would be guilty of "knowingly exposing another person to fentanyl" in the second degree.
For the first-degree offense, the offender would be guilty of a Class Y felony if the affected person is a first responder or an employee of a correctional facility. Otherwise, the offense would be a Class A felony.
For the second-degree offense, the offender would be guilty of a Class A felony if the affected person is a first responder or an employee of a correctional facility. Otherwise, the offense would be a Class B felony.
Both bills provide exemptions for medical professionals, pharmacists and others who are permitted to legally possess pharmaceutical fentanyl.
Information for this article was contributed by Neal Earley of the Arkansas Democrat-Gazette.