The state House Judiciary Committee reluctantly approved Wednesday a proposal increasing mandatory sentencing for fentanyl and heroin crimes that is viewed by critics as a step backward in the push for criminal justice reform in Arizona.
All four Democratic members of the committee voted against House Bill 2036 while all six Republicans favored it. But those Republicans said their continued support is contingent on major changes to the bill to narrow its scope.
The measure, sponsored by Prescott Republican Rep. Steve Pierce, covers crimes related to fentanyl, heroin and carfentanil. It increases the prison sentence for those convicted of possessing any of those drugs for sale, manufacturing it, transporting it for sale or administering it to another person (currently all class 2 felonies). It also applies to current class 3 felonies of possessing equipment or chemicals for manufacturing, and obtaining or procuring the administration of the drug by fraud.
Those felonies already have mandated minimum sentences: For first-time offenders, class 2 felonies carry minimum sentences of 4 years and maximum sentences of 10 years, while class 3 felonies have a 2.5-year minimum and a 7-year maximum.
Pierce’s proposal would increase those minimum sentences. It would require first-time offenders to serve a 5-year minimum sentence and a maximum 15-year period behind bars. Repeat offenders would have a minimum sentence of 10 years and a maximum prison time of 20 years under HB2036.
At the committee hearing, Republican Reps. Nancy Barto, Walt Blackman, Mark Finchem and Bret Roberts said they want a much narrower version of the bill. If an amended version isn’t presented, they all said they won’t support Pierce’s bill on the House floor.
They proposed that Pierce make changes like removing mandatory sentences for first-time offenders and focusing the bill just on those who sell and manufacture meaningful quantities of fentanyl and heroin.
Pierce told Arizona Mirror he will gladly work with other legislators and stakeholders to amend HB2036 into a proposal that gathers wider support.
“We need to start something going here, we can’t just stand still,” he said.
Roberts and Blackman said they were reluctant to support legislation that will place more people who have substance abuse problems in prison, where needs for addiction treatment are largely underserved.
“In order for us to fix our criminal justice system in Arizona, we have to take responsible steps to make sure both are met: taking care of the community and ensuring that the person who commits the crime is the right person that should be in prison,” Blackman said. “There’s also a third aspect to that: folks who use this particular drug.
“I do not think this bill addresses the problem of substance abuse.”
Rep. Kristen Engel, D-Tucson, agreed that HB2036 is too broad, but disagreed with moving it forward so it could be narrowed later.
“What we’ve heard is that this bill is manifestly overbroad and a continuation of failed policies with respect to criminal drug sentencing,” Engel said. “It sweeps within its grasp drug addicts, it’s not a fine-tuned scalpel to focus in on the real perpetrators of the crimes we are trying to address — who are the dealers with intent to addict others. Instead, we are prosecuting the addicted.”
Families who had lost relatives to fentanyl told lawmakers that the stiffer penalties will help deter the sale and distribution of the dangerous drug, while public defenders, opioid experts and criminal justice reform advocates said HB2036 will fill the state’s prisons with people with drug addictions who are punished for selling narcotics to fund their habit.
‘Send a message to drug dealers’
At the hearing, Terri Morales gave an emotional account on how her 19-year-old son, Jake, died in 2008 when he took a pill he didn’t know was laced with fentanyl.
Morales, a Prescott Valley resident, said the person who sold drugs to her son was only sentenced to probation and was still dealing pills after Jake’s death.
“I’m here today hoping I can influence change in Arizona and prevent this from happening to other families,” she said. Morales added that’d she’d rather have her son in prison for possessing drugs than dead.
Morales’ small granddaughter was in the hearing room. Her hair was tied in two pigtails with pink bows, and she played with a coloring book and ate raisins as the discussion took place. She wore a black T-shirt that read in the back, “My uncle is my guardian angel, he watches over my back.”
“My grandchildren still ask, ‘Why doesn’t uncle Jake come visit us anymore?’… They don’t understand,” Morales told lawmakers.
Glenn and Jill Martin told the committee that their son died from fentanyl obtained while he was staying at a sober home. Jill’s nephew also died from fentanyl, she said.
They said drug pedalers have to be penalized, and that’s why they support HB2036.
Two newspaper editors from northern Arizona also testified in favor of locking opioid users up longer.
Richard Haddad, an executive with Western News & Info, Inc which owns several community newspapers, compared selling fentanyl to someone walking into a school to shoot children.
“It breaks my heart, as I see the headlines in these papers throughout our group in northern Arizona, where young people who thought they had a paper grenade die,” Haddad said. “Arizona should send a message to the drug dealers, whether they’d be in Mexico or China, that Arizona is closed for business for fentanyl, and they will go somewhere else.”
Punishing people with addictions
Several people who testified against the bill pushed back on the notion that harsher sentences alleviate use, sale and distribution of drugs.
Among them was Molly Gill, vice president of policy for Families Against Mandatory Minimums, a Washington, D.C.-based non-profit.
“What we need is better law enforcement, we need to address the driving factors leading to substance abuse,” Gill said. “Just increasing the severity of a sentence has never proven to deter people from drug activity.”
Boaz Witbeck, of the conservative advocacy group Americans for Prosperity of Arizona, said he was concerned with the broad scope of HB2036. He said his group supports proposals that are “smart on crime, soft on taxpayers.”
Witbeck said the legislation “covers addicts who are reselling their fix” and goes against the progress made under the First Step Act, one of President Donald Trump’s most meaningful accomplishments that cuts sentences and allows people to earn an earlier release from prison.
“Longer drug sentences have no correlation to solving drug problems,” Witbeck said.
Others who opposed the bill said people with heroin or fentanyl addictions will be the ones punished, not drug manufacturers and dealers.
Kara Williams, with the Smart Justice project of the American Civil Liberties Union of Arizona, told the committee she has been to prison twice for narcotics-related crimes.
“I did a lot of time. I did sell pills, did sell narcotics, but it was to support my own habit – I never did it to hurt anybody,” Williams said. “The majority of people that I know who are in prison for substances are the same as me: We have an addiction and we need help and we need treatment.”
Lawrence and Finchem rejected the notion that drug dealers are often drug users.
“If you are dealing fentanyl, you are dealing a drug that kills,” Lawrence said.
Nathan Wade, a public defender in Pima County, told the Mirror that people who have not sold a drug are often charged with sale. That’s because people are often presumed to be in possession of a drug with an intent to sell it if they have an amount that goes above certain minimums, Wade explained.
Wade also shared with lawmakers the case of one of clients, Molly. He said Molly was on probation for a drug offense and later sold a small bag of heroin to an undercover police officer for $10 in 2016.
The prosecutor in the case used discretion to get Molly into a residential treatment program instead of pursuing a prison sentence, Wade said. She received treatment for her heroin addiction and now mentors young women, he said.
Wade added that HB2036 would take away that prosecutorial discretion and mandate people like Molly serve years behind bars.
“Under this bill, Molly will be going to prison for 10 years for selling a dime-bag of heroin,” he said. “This bill would throw away people like Molly, who are making a difference in their community.”
Joel Feinman, another public defender in Pima County, said laws related to drug crimes scoop up people selling small amounts of drugs, not the organized crime organizations that produce and distribute narcotics in large quantities.
Feinman said a 2016 study from the Pima County Public Defender’s Office on prosecutions for drug crimes showed three-fourths of people charged with drug sales should have just been charged with drug possession.
Rep. Diego Rodriguez, D-Phoenix, said HB2036 represents a significant step backward in addressing Arizona’s high incarceration rates becauses it “lumps heroin users and the heroin-addicted with fentanyl users and the fentanyl-addicted and also the dealers who are preying upon them.”
“We will create another class of individuals who are drug addicted and who are not receiving treatment, and who are being punished without a concern for individualized justice,” Rodriguez said.