GOP proposal that would make a fentanyl deaths first-degree murder moves forward

Fentanyl dealers linked to an overdose death could face the death penalty under a Republican proposal that critics say will also sweep up drug addicts and send them to death row. 

The legislation would expand the state’s first-degree murder statutes to include deaths by fentanyl if the drug is able to be traced back to a specific individual. First-degree murder in Arizona is punishable by life in prison or the death penalty.

Criminal justice advocates previously said that Senate Bill 1029 will create murder charges for those who possess the drug — even in cases of accidental death. The bill’s primary sponsor, Sen. Anthony Kern, R-Glendale, aimed to address those concerns with an amendment on the Senate floor that added language that the person must also be associated with conduct of an organized enterprise. 

Fentanyl is a synthetic opioid that is far stronger than other opioids. It has been partially responsible for an increase in the number of drug overdose deaths both nationally and locally, according to the Drug Enforcement Agency.

Fentanyl in Arizona has seen a boom in recent years. In 2021, the Scottsdale Police Department and Arizona Attorney General’s Office seized a record 1.7 million fentanyl tablets and over 10 kilograms of fentanyl powder during a single investigation. Last week, Arizona Attorney General Kris Mayes, along with members of the Tempe Police Department, announced a seizure of 4.5 million fentanyl-laced fake prescription pills largely produced and distributed by the Sinaloa drug cartel. 

During a two-month period in 2021, the Drug Enforcement Agency in Phoenix seized over 3 million fentanyl pills and 45 kilograms of fentanyl powder, and made 40 arrests. 

The drug has also overtaken heroin for the first time as the most-trafficked drug across the U.S.-Mexico border. In Pima County, health officials have begun to distribute test strips to help residents determine if their drugs contain fentanyl.

Kern’s changes were not enough sway Democratic Sen. Christine Marsh, D-Phoenix, who lost her son to a fentanyl overdose after he took a percocet pill that he didn’t know was laced with the drug. It led her to champion a law in 2021 that legalized fentanyl testing strips. 

Marsh said she appreciated the intent of the bill but said it did not do anything to fix the issues with overdose deaths or help with drug prevention. She advocated instead for sentences that include community service over higher incarceration. Studies have shown no relationship between harsh penalties and drug misuse and at times has led to the rise of newer, more dangerous drugs. 

“It doesn’t acknowledge that the only way to really stop fentanyl and opioid epidemics in Arizona is to treat it through education and rehabilitation,” Sen. Anna Hernandez, D-Phoenix, said. “We should be going about it through education, through harm reduction, through rehabilitation.”

However, Hernandez’s Republican colleagues took a much harsher stance on the issue. 

“I’m not going to apologize if somebody is selling fentanyl as part of an organized crime enterprise — they deserve to die,” Sen. Sonny Borrelli, R-Lake Havasu, said in an impassioned speech on the Senate floor. 

“As far as I am concerned, there should be an express lane to the gas chamber,” Borrelli said, adding that those who deal fentanyl should get a “bullet to the head.” 

Kern thanked Borrelli for his “passion” and said he “fully concurred with every word he said.” 

Kern said that the bill is a mirror of a measure being run in Washington D.C. by U.S. Rep. Paul Gosar, R-Prescott, that seeks the death penalty or life in prison for fentanyl dealers. Kern reiterated on the Senate floor that the bill is not aimed at those giving a pill to one another person but at dealers. 

“This bill is trying to address the crisis in our nation, the crisis in Arizona,” Kern said, adding that fentanyl was pouring across the U.S.-Mexico border. “I don’t think anything other than strict penalties will do that.”

The bill passed out of the Senate and will head next to the state House of Representatives for consideration.